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ROGER  BROOKE  TANEY 


By  V/illidm'  ti.'Rtnyh'afl      ^   •  r,  -  r  '  ,  Washington  Place,  Balthnore 

STATUE  OF  ROGER  BROOKE  TANEY 


Life  of 

Roger  Brooke  Taney 

Chief  Justice  of  the 
United  States  Supreme  Court 


BY 
BERNARD  C.  STEINER 


BALTIMORE 

WILLIAMS  &  WILKINS  COMPANY 
1922 


Copyright  1922 
BERNARD  C.  STEINER 

Made  in  United  States  of  America 

All  rights  reserved,  including  that  of  translation 

into  foreign  languages,  including 

the  Scandinavian 


//c<2^t(^4A^ -^^^ 


COMPOSED  AND  PRINTED  AT  THE 

WAVERLY  PRESS 

By  THE  Williams  &  Wilkins  Company 

Baltimore,  Md.,  U.  S.  A. 


PREFACE 

The  presence  of  four  men  in  Maryland  secured  in 
that  State  the  success  of  the  sympathizers  with  the 
Union  in  1861.  Three  of  these  men  were  politicians 
and  lawyers:  John  Pendleton  Kennedy,  Reverdy  John- 
son, and  Henry  Winter  Davis.  The  fourth  was  a 
jurist — Roger  Brooke  Taney.  The  life  of  Kennedy 
was  written  by  Tuckerman  and  needs  not  to  be  written 
again.  Those  of  Johnson  and  Davis,  it  has  been  the 
privilege  of  the  author  of  this  work  to  write.  The 
life  of  Taney  has  been  written  by  Samuel  Tyler  and 
was  published  in  1872.  That  portly  volume  is  inval- 
uable to  every  student  of  Taney's  life,  both  because 
the  author  was  a  friend  of  the  Chief  Justice  and  gathered 
information  which  would  otherwise  have  been  lost  and 
because  the  book  contains  a  very  valuable  autobiog- 
raphy of  Taney's  early  years.  Yet  the  book  was 
styled  by  a  contemporary  reviewer,  as  a  ''panegyric 
rather  than  a  biography,"  was  written  uncritically, 
is  nearly  fifty  years  old,  did  not  include  the  information 
now  to  be  gained  from  Taney's  correspondence  with 
President  Jackson,  and  involved  no  full  discussion  of 
the  subject's  place  as  a  jurist.  For  these  reasons,  it 
seemed  worth  while  to  have  this  book  written — the 
life  of  a  Border  State  Federalist,  written  by  one  who 
was  brought  up  in  the  town  where  Taney  practiced 
law  for  nearly  a  quarter  of  a  century,  and  who  has 
lived  for  the  whole  of  his  adult  life  in  the  city  which  was 
Taney's  residence  during  his  judicial  career.  I  have 
tried  to  write  a  biography,  not  a  history  of  the  times, 
and  to  portray  the  venerable  Chief  Justice  as  a  con- 
sistent character,  limited  by  his  environment,  compre- 


5  6  7  ^  7  o 


4  PREFACE 

hensible  only  when  It  is  comprehended,  and  yet,  be- 
cause of  the  conjunctions  of  his  nature  and  his  oppor- 
tunities, a  notable  figure  in  United  States  history,  a 
high-minded,  sincere,  devout  man. 

Miss  Eleanor  M.  Johnson,  of  Frederick,  has  kindly 
permitted  the  reproduction  of  the  silhouette  of  Taney, 
made  while  he  resided  in  that  town,  and  J.  Henry  Baker, 
Esq.,  of  Baltimore,  has  generously  loaned  the  cut  of  the 
painting  of  Taney  which  belongs  to  Dickinson  College. 
The  author's  thanks  are  due  to  John  E.  Semmes,  Esq., 
and  to  Lawrence  C.  Wroth  for  courtesies  shown  during 
the  preparation  of  the  work. 

During  the  printing  of  the  book,  "Judge  Taney"  has 
become  a  household  word  in  our  family.  Should  a 
formal  dedication  have  seemed  wise,  it  would  have  been 
made  to  the  memory  of  the  conversations  held,  concern- 
ing the  preparation  of  this  book,  with  my  wife  and  sons. 


CONTENTS 

Chapter  I — Early  Life  and  Dickinson  College  (1777-1796) .  .       7 

Chapter  II— Law  Student  at  Annapolis  (1796-1798) 21 

Chapter  III — ^Lawyer  in  Calvert  County  and  Member  of 

the  House  of  Delegates  (1798-1801) 29 

Chapter  IV— Law  Practice  at  Frederick  (1801-1823) 39 

Chapter  V— Law  Practice  at  Baltimore  (1823-1831) 81 

U^HAPTER  VI — Attorney  General  of  the  United  States  (1831- 

1833) 100 

/^HAPTER  VII — Secretary  of    the   United    States   Treasury 

^        (1833-1834) 144 

Chapter  VIII — Resumption  of  Law  Practice  (1834-1836) . .  .   166 
^'Chapter  IX — Chief  Justice  of  the  Supreme  Court  (1836- 

1846) 187 

IxChapter  X — Friendship   with   Jackson    and    Private    Life 

(1836-1846) 232 

Chapter  XI— The  Period  of  the"Genesee  Chief"  (1846-1856)  267 

Chapter  XII— The  Dred  Scott  Case  (1856-1857) 326 

Chapter  XIII— The  End  of  the  Era  (1856-1861) 419 

Chapter  XIV— Circuit  Court  Decisions   (1836-1863) 451 

Chapter  XV— The  Civil  War  (1861-1864) 488 

Chapter  XVI— After  Taney's  Death .'....  522 

Index 543 

Illustrations 

Rinehart's  Statue  of  Taney Frontispiece 

Silhouette  of  Taney  at  Frederick Opposite  page  39 

Portrait  of  Taney  by  Farley Opposite  page  419 


Cicero,  "De  Senectuie"  Cap.  3,  8:  "Cato,  Est  istud  quidem,  Laeli,  aliquid, 
sed  nequaquam  in  isto  sunt  omnia.  Ut  Themistocles  fertur  Seriphio  cuidam  in 
iurgio  respondisse,  cum  ille  dixisset  non  eum  sua,  sed  patriae  gloria  splendorem 
adsecutum.  'Nee  hercule,'  inquit,  'si  ego  Seriphius  essem,  nee  tu  si  Athen- 
censis,  clarus  unquam  fuisses.'  " 

James  Breck  Perkins,  in  the  preface  to  his  ^'France  under  Richelieu  and 
Mazarin,''  wrote:  "Of  the  pleasure  of  being  brought  into  close  contact  with  the 
great  figures  of  other  times,  of  reading  their  thoughts  and  their  purposes,  of 
living  for  a  while  in  intimate  relations  with  a  generation  that  has  long  passed 
away,  sympathizing,  as  a  contemporary  might,  with  their  adversity  and  their 
suffering,  rejoicing  in  what  gratified  national  pride  or  increased  individual 
comfort." 

W.  Alexander,  "Epistles  of  St.  John^'  (Expositor's  Bible)  p.  85:  "A  great  life, 
even  as  the  world  counts  greatness,  is  an  organic  whole  with  an  underlying 
vitalising  idea;  which  must  be  construed  as  such,  and  cannot  be  adequately 
rendered  by  a  mere  narration  of  facts.  Without  this  unifying  principle,  the 
facts  will  be  not  only  incoherent,  but  inconsistent.  There  must  be  a  point  of 
view  from  which  we  can  embrace  the  life  as  one.  The  great  test  here,  as  in 
act,  is  the  formation  of  a  living,  consistent,  unmutilated  whole." 

W.  H.  Dunn,  "English  Biography, ''  p.  XIV:  A  true  biography  is  the  narra- 
tive, from  birth  to  death,  of  one  man's  life  in  its  outward  manifestations  and 
inward  workings.  The  aims  of  such  a  true  biography,  in  its  simplest  form, 
would,  therefore,  in^clude  a  record  of  facts,  combined  with  some  portrayal  of 
character. 

/.  Dryden,  Works  (1821,  Constable),  XVII,  56:  "As  the  sunbeams,  united  in 
a  burning-glass  to  a  point,  have  greater  force,  than  when  they  are  darted  from 
plain  superficies,  so  the  virtues  and  actions  of  men,  drawn  together  into  a 
single  story,  strike  upon  our  minds  a  stronger  afnd  more  lively  impression  than 
the  scattered  relations  of  many  men  and  many  actions,  and,  by  the  same 
means  that  they  give  up  pleasure,  they  afford  us  profit  too." 

Leslie  Stephen,  "Encyclopedia  Britannica":    "History  is,  of  course,  related  to 
biography,  inasmuch  as  most  events  are  connected  with  some  particular  person 
.     and,  on  the  other  hand,  every  individual  life  is,  to  some  extent, 
an  indication  of  the  historical  conditions  of  the  time." 

W.  R.  Thayer  in  "North  American  Review,^'  June,  1920:  "The  master  crea- 
tions of  fiction  sprung  from  the  human  brain;  the  subjects  of  biography  are 
the  very  creatures  of  God  himself:  the  realities  of  God  must  forever  transcend 
the  fictions  of  man." 


CHAPTER   I 

Early  Life   (1777-1796) 

The  broad  Patuxent  River,  one  of  the  tidal  estuaries 
opening  into  the  Chesapeake  Bay,  divides  the  southern 
portions  of  the  Western  Shore  of  Maryland.  On  the 
banks  of  this  river  colonists  settled,  who  came  from 
England  to  Maryland  during  the  seventeenth  century, 
and  there  they  cultivated  tobacco  and  raised  some 
grain.  St.  Mary's  County  occupied  the  lower  western 
and  southern  bank  of  this  river.  It  was  the  first  set- 
tled portion  of  the  Province,  and  has  always  been  in- 
habited by  a  people  whose  religion  is  predominantly 
Roman  Catholic.  The  rolling,  broken  country  to  the 
north  and  east  of  the  Patuxent  River,  forming  a  penin- 
sula between  River  and  Bay,  was  set  off  as  Calvert 
County,  within  a  generation  of  the  settlement  of  the 
Province.  This  tract  of  land,  named  for  the  family 
of  the  Lord  Proprietary,  was  inhabited  by  planters, 
whose  holdings  of  land  stretched  along  the  water,  which 
was  the  chief  highway  of  the  County,  until  a  State 
Road  was  carried  through  it  about  1914.  The  people 
were  for  the  most  part  Protestants,  but  some  families 
adhered  to  the  Roman  Catholic  Church,  and  among  these 
adherents  was  Michael  Taney.  His  ancestors  had 
come  to  the  Province  in  the  seventeenth  century,  and, 
for  several  generations,  they  had  owned  and  cultivated 
a  plantation  on  the  Patuxent  River  at  the  mouth  of 
Battle  Creek.  Roman  Catholics  were  prohibited  from 
teaching  school  in  the  Province  during  the  latter  part 
of  the  Colonial  Period,  and  the  planters  of  that  faith, 
who  could  afford  to  do  so,  sent  their  children  to  France 

7 


8  ROGER   BROOKE   TANEY 

to  be  educated.  The  Taneys  lived  comfortably  on  their 
"good  landed  estate,"  cultivated  by  the  slaves  they 
owned,  and  so  Michael  Taney  was  sent  to  the  Jesuit 
College  at  St.  Omer's  and  completed  his  education  at 
Bruges.  He  returned  to  America,  took  possession  of 
his  estate  at  his  father's  death  and  married,  about 
1770,  Monica  Brooke,  whose  father's  plantation  was 
directly  opposite  the  Taneys'  on  Battle  Creek.  The 
Brooke  family  had  been  prominent  in  the  Province, 
from  the  time  that  Robert  Brooke  came  in  1650  and 
"seated  himself"  on  the  Patuxent  River,  about  twenty 
miles  from  the  Bay.  He  was  an  Anglican,  but  some 
of  his  descendants  became  members  of  the  Church  of 
Rome,  among  them  the  branch  to  which  Monica  Brooke 
belonged.  Robert  Brooke's  second  son  was  named 
Roger  and  the  latter  had  a  son  and  grandson  who  bore 
the  same  name.  The  last  of  these  was  Monica  Brooke's 
father.  She  was  born  in  1752  and  was  eighteen  years 
of  age  when  she  was  married. ^  The  last  Roger  Brooke 
married  twice,  Monica  being  his  seventh  child,  and  the 
second  one  of  his  second  wife,  Elizabeth  Boarman. 
Michael  and  Monica  Taney  had  seven  children,  four  sons 
and  three  daughters,  of  whom  Roger  Brooke  Taney, 
born  on  the  Battle  Creek  Plantation  on  March  17, 
1777,  and  named  for  his  maternal  grandfather,  was  the 
third  child  and  second  son. 

Of  Michael  Taney,  we  know  nothing,  except  what 
Roger  Taney's  autobiography  tells  us  of  him  and  the 
tradition  which  states  that  he  was  a  hot-tempered 
man,  and,  once  in  a  quarrel,  stabbed  a  man,  who  died 

1  For  the  Brooke  family  see  Tyler  "Life  of  Taney,"  pp.  21-26  and  Dr.  Chris- 
topher Johnston's  article  in  1  Md.  Hist.  Mag.,  287.  Tyler  (ix)  thought  the 
name  Taney  was  probably  of  Irish  extraction.  Taney  town  in  Carroll  County, 
Md.,  is  named  for  Raphael  Taney,  a  relative  of  Roger  B.  Taney  (See  2  Md. 
Hist.  Mag.  74,  article  by  G.  S.  Tawney). 


ROGER   BROOKE   TANEY  9 

from  the  wound. ^  He  "lived  to  an  advanced  age, "^  and 
made  Roger  Taney  executor  of  his  estate,  which  was  a 
compHcated  one  and  was  not  finally  settled  until  after 
the  executor  had  become  Chief  Justice.  The  auto- 
biography speaks  with  respect  of  the  father,  and  shows 
that  the  two  men  were  fond  of  one  another.^  We  are 
told  by  the  son  that  Michael  Taney  had  ''no  taste  for 
teaching  and  did  not  often  assist"  his  children  in  their 
lessons,  becoming  "impatient,"  if  they  "did  not  learn 
as  fast  as  he  thought  they  should."  "He  w^as  fond  of 
reading  and  ....  had  read  every  work  he  could 
obtain  in  the  then  scant  libraries  of  the  country." 
A  typical  country  gentleman,  he  "took  pleasure  in 
teaching  his  sons  how  to  ride  and  swim  and  to  fish  and 
to  row  and  sail  in  summer  and  to  skate  and  to  shoot 
ducks  and  geese  in  the  winter."  As  a  result  of  this 
instruction,  Roger  Taney  wrote  that  he  could  not 
"remember  when  I  could  not  ride  on  horseback  and  but 
faintly  remember  my  first  effort  at  swimming."^ 

Upon  his  mother,  Taney  lavished  his  affections. 
Most  women  in  Maryland  at  that  time,  received  a 
"very  limited  amount  of  human  learning."  "But," 
he  wrote  forty  years  after  her  death,  "her  judgment 
was  sound  and  she  had  knowledge  and  qualities  far 
higher  and  better  than  mere  human  learning  can  give. 
She  was  pious,  gentle  and  affectionate,  retiring  and 
gentle  in  her  tastes.  I  never  in  my  life  heard  her  say 
an  angry  or  unkind  word  to  any  of  her  children  or  serv- 
ants, nor  speak  ill  of  any  one.  When  any  of  us.  or 
the  servants  about  the  house  who  were  under  her  im- 

2  See  Hungerford's  "Old  Plantation"  p.  300  and  G.  A.  Townsend's  story 
refuted  in  67  Catholic  World  for  June  1898,  p.  396. 

3  Tyler,  p.  27. 

4  Vide  Tyler,  pp.  36,  80,  94. 
»Tyler,pp.  27,  28. 


10  ROGER   BROOKE   TANEY 

mediate  control  (all  of  whom  were  slaves),  committed 
a  fault,  her  reproof  was  gentle  and  affectionate.  If 
any  of  the  plantation-servants  committed  faults  and 
were  about  to  be  punished,  they  came  to  her  to  inter- 
cede for  them ;  and  she  never  failed  to  use  her  influence 
in  their  behalf,  nor  did  she  ever  hear  of  a  case  of  dis- 
tress within  her  reach  that  she  did  not  endeavor  to 
relieve  it.  I  remember  and  feel  the  effect  of  her  teach- 
ing to  this  hour.  "^ 

When  the  British  fleet  entered  the  Patuxent  River 
in  the  expedition  against  Washington,  it  anchored 
opposite  Michael  Taney's  house,  where  the  stream  was 
two  miles  broad. ^  About  that  time,  Mrs.  Taney  left 
her  home  and  took  refuge  with  her  son,  Roger,  who  was 
then  living  in  Frederick.  A  few  months  afterward, 
before  the  end  of  1814,  she  died  and  was  buried  in  the 
little  graveyard  of  the  Jesuit  Novitiate  in  Frederick. 
When  Taney  removed  from  Frederick,  he  made  an 
arrangement  with  a  friend  to  have  himself  buried  be- 
side her,  whenever  and  wherever  he  might  die.^  Fifty 
years  after  her  death  and  when  his  own  death  was  only 
a  few  months  distant,  he  wrote  to  thank  one  who  had 
removed  the  "moss  and  rubbish"  from  the  flat  stone 
placed  over  her  grave. ^  In  that  letter,  he  referred  to 
his  expectation  that  he  would  soon  "be  laid  by  the  side 
of  my  mother."  This  direction  was  carried  out  by 
Taney's  family,  and,  when  the  graveyard  was  given  up, 
at  the  time  the  Novitiate  was  taken  from  Frederick 
about  the  year  1900,  the  two  bodies  were  removed  to  the 
Roman  Catholic  cemetery  of  the  town,  where  they 
now  lie  side  by  side. 

6  Tyler,  p.  26. 

7  Tyler,  p.  20. 

8  Tyler,  p.  143. 

9  May  6,  1864,  to  H.  McAleer.     Letter  dated  Washington.    Tyler,  p.  484. 


ROGER   BROOKE   TANEY  11 

The  planters  of  Calvert  County  lived  far  from  towns, 
and  the  Taney  plantation  was  in  a  "retired  situation." 
The  Maryland  Constitution  of  1776  had  placed  all 
Christians  upon  "an  equal  footing,"  as  far  as  education 
went ;  but  it  was  difficult  to  find  a  school  near  the  Taneys' 
plantation. I*'  "The  families  which  we  visited  by  land, " 
Taney  wrote,  "were  several  miles  distant  from  us,  and 
our  chief  social  intercourse  was  in  boats  across  the  river 
or  creek,  with  families  who  resided  on  the  opposite 
shores.  "11  At  eight  years  of  age,  Roger  Taney  began 
going  to  the  only  school  within  ten  miles — one  "dis- 
tant three  miles,  kept  in  a  log  cabin  by  a  well  disposed, 
but  ignorant,  old  man,  who  professed  to  teach  reading, 
writing,  and  arithmetic  as  far  as  the  rule  of  three." 
The  teacher  was  not  religious,  but  was  "a  kind  man, 
upright  and  conscientious."  The  "only  school  books 
were  Dilworth's  spelling  book  and  the  Bible."  The 
latter  volume  was  probably  in  the  King  James  version, 
as  the  teacher  professed  to  belong  to  the  Episcopal 
Church,  and  "was  used  merely  as  a  book  to  teach  us 
how  to  spell  words  and  pronounce  them. "  The  teacher 
eked  out  his  living  by  cultivating  a  "few  acres  of  poor 
land."  To  and  from  this  school,  Roger  Taney,  with 
his  elder  brother  and  sister,  "walked  every  day,  when 
the  weather  was  good,  and,  when  it  was  unfavorable, 
we  stayed  at  home.  Our  attendance,  therefore,  was 
not  very  regular."  About  thirty  scholars  generally 
attended  this  school — "which  was  a  large  number, 
considering  its  retired  situation  and  the  sparse  popu- 
lation about  it. "12  A  "barring  out"  of  the  master 
was  the  "only  exciting  event, "  which  Taney  remembered 
of  his  stay  there. 

"Tyler,  p.  27. 
"  Tyler,  p.  20. 
12  Tyler,  p.  27-29. 


12  ROGER   BROOKE   TANEY 

When  the  two  Taney  boys  had  learned  what  this 
teacher  could  instruct  them,  they  were  sent  to  board 
with  a  Scotchman,  named  Hunter,  who  kept  a  grammar 
school  in  Calvert  County,  ten  miles  from  the  Taney 
plantation.  "He  had  the  reputation  of  being  an  ac- 
complished classical  scholar,"  and  taught  about  twenty 
pupils.  Roger  Taney  began  to  study  Latin  with  him, 
but,  after  tw^o  or  three  months,  the  teacher  became  in- 
sane and  the  schooP^  was  broken  up.  Michael  Taney 
then  determined  to  employ  a  private  tutor.  This  was 
a  common  practice  in  that  time  and  place.  It  gave 
almost  the  only  opportunity  to  have  the  daughters 
educated.  '*He  planned  to  adopt  the  English  notion  of 
''perpetuating  the  family  estate  in  the  eldest  son"  and 
to  give  him  the  "landed  estate,"  while  providing  the 
younger  sons  "with  a  liberal  education  and  the  means 
of  studying  a  profession,"  upon  which  they  must  sup- 
port themselves.  By  this  plan,  which,  as  Taney  wrote, 
"proved  an  unfortunate  one  for  my  elder  brother," 
Michael  Taney  "designed  to  give  him  nothing  more 
than  a  good  English  education  that  would  fit  him  for 
the  business  of  a  landed  gentleman,  cultivating  his  own 
estate,  and  qualify  him  to  associate  upon  equal  terms, 
as  to  education  and  information,  with  the  gentlemen 
of  the  county."  All  this  would  be  accomplished  by  a 
private  tutor. 

Roger  Taney  was  about  twelve  years  of  age  when 
the  first  tutor  was  engaged — "an  Irishman,  who  died 
of  consumption  within  a  year."  Taney  believed  that 
this  tutor  was  "a  ripe  scholar."  He  was  certainly  an 
amiable  and  accomplished  man  in  his  disposition  and 
manners.  "The  second  tutor,  whose  term  of  service 
was  a  year,  was  a  native  of  Maryland."     He  was  a 

"Tyler,  p.  33. 


ROGER   BROOKE   TANEY  13 

good  English  scholar,  but  his  "knowledge  of  Latin  was 
very  slender"  and  he  "was  altogether  ignorant  of 
Greek. "  The  third  and  last  tutor  was  David  English,  a 
graduate  of  Princeton,  who  afterwards  edited  a  news- 
paper in  Georgetown,  D.  C.,  and  "was  for  many  years 
employed  as  an  officer  in  one  of  the  banks  of  that  place. " 
He  was  "an  accomplished  scholar  and  seemed  to  take 
pleasure  in  teaching  us  and  was  altogether  an  agreeable 
inmate  in  the  family."  In  1854,  Taney  recalled  with 
pleasure,  English's  "unwearied  attention  and  kind- 
ness" and  the  "interest  he  took  in  my  fortunes,  as 
long  as  he  lived." 

After  a  year's  instruction,  English  advised  Michael 
Taney  to  send  Roger  at  once  to  college,  and  encouraged 
him  to  do  so  by  the  very  favorable  accounts  he  gave 
of  "the  boy's  progress. "^"^  Dickinson  College,  at  Car- 
lisle, Pennsylvania,  was  selected,  because  two  young 
men,  somewhat  older  than  Roger  Taney,  with  whose 
families  Michael  Taney  was  "intimately  acquainted," 
were  already  students  there  and  "gave  very  favorable 
accounts  of  the  institution.  "^^  Thither,  accordingly, 
Roger  Taney  went,  just  after  he  was  fifteen  years  old, 
at  the  close  of  the  spring  vacation  in  1792,  in  company 
with  one  of  the  students  just  referred  to. 

"It  was  no  small  undertaking,  however,  in  that  day, 
to  get  from  the  lower  part  of  Calvert  County  to  Car- 
lisle. We  embarked,"  says  Taney,  "on  board  one  of 
the  schooners  employed  in  transporting  produce  and 
goods  between  the  Patuxent  River  and  Baltimore,  and, 
owing  to  unfavorable  winds,  it  was  a  week  before  we 
reached  our  port  of  destination;  and,  as  there  was  no 
stage  or  any  other  public  conveyance  between  Balti- 

"  Tyler,  pp.  33-35. 
"Tyler,  p.  36. 


14  ROGER   BROOKE   TANEY 

more  and  Carlisle,  we  were  obliged  to  stay  at  an  inn, 
until  we  could  find  a  wagon  returning  to  Carlisle,  and 
not  too  heavily  laden  to  take  our  trunks  and  allow  us 
occasionally  to  ride  in  it."  The  whole  journey  took 
about  a  fortnight.  ''And  what  made  the  journey  more 
unpleasant,"  Taney  continued,  *Vas  that  we  were 
obliged  to  take,  in  specie,  money  enough  to  pay  our 
expenses  until  the  next  vacation.  The  money  was 
necessarily  placed  in  our  trunks,  and  they  were  very 
much  exposed  in  an  open  wagon  in  a  public  wagon- 
yard,  while  the  wagoner  and  ourselves  were  somewhere 
else."i« 

Taney  found  his  college  life  "taken  altogether,  a 
pleasant  one."  Dickinson  College  was  not  yet  ten 
years  old.  The  second  institution  of  collegiate  grade 
in  the  State  of  Pennsylvania,  it  had  been  incorporated 
in  1783  and  was  opened  shortly  afterwards  with  the 
Rev.  Charles  Nisbet,  D.D.,  of  Montrose,  Scotland,  as 
principal,  an  ofBce  he  continued  to  hold  until  his  death 
in  1804.  He  was  a  Presbyterian  clergyman,  and  while 
the  new  college  was  not  exclusively  denominational, 
its  tone  was  distinctively  Presbyterian,  until  the  insti- 
tution was  taken  over  by  the  Methodists  in  1833.  Dr. 
Nisbet  was  not  only  head  of  the  College,  but  also  occu- 
pied the  pulpit  of  the  Presbyterian  Church  at  Carlisle, 
alternately  with  his  colleague  in  the  faculty,  the  Rev. 
Robert  Davidson,  D.D.,  a  graduate  of  the  University 
of  Pennsylvania.^^    The  college  exercises  were  held  in 

i«  Tyler,  p.  37. 

"  See  the  "Sketch  of  Dickinson  College"  by  Professor  Charles  F.  Himes  in 
Haskins  and  Hull's  "History  of  Higher  Education  in  Pennsylvania,"  Con- 
tributions to  American  Educational  History,  edited  by  Herbert  B.  Adams,  No. 
33.  Tyler  (p.  99)  had  access  to  the  notes  which  Taney  took  of  Dr.  Nisbet's 
lectures,  and  found  them  "very  full  and  very  accurate,"  in  "bound  manuscript 
volumes."    "The  notes  on  moral  philosophy  cover  248  closely  written  pages. 


ROGER   BROOKE   TANEY  15 

a  two  story  building,  which  Taney  describedi^  as  a 
"small  and  shabby  one  fronting  on  a  dirty  alley,  but 
with  a  large  open  lot  in  the  rear,  where  we  often  amused 
ourselves  playing  bandy."  There  was  no  dormitory, 
and  the  students  boarded  with  families  in  the  town. 
Taney's  first  boarding  place  is  unknown;  but,  after 
six  months,  he  resided  in  the  house  of  James  McCor- 
mick,  the  Professor  of  Mathematics.  There  were 
usually  eight  students  boarding  there,  and  Taney 
remembered  that  ''Mr.  McCormick  and  his  wife  were 
as  kind  to  us,  as  if  they  had  been  our  parents." 

Taney's  relations  with  Dr.  Nisbet  were  very  pleasant. 
A  letter  from  Michael  Taney  to  Dr.  Nisbet  asked  him 
"to  stand  in  the  place  of  a  guardian"  to  the  boy,  on 
account  of  his  "youth  and  distance  from  home  and 
friends  and  the  retirement  and  seclusion"  in  which  he 
"had  so  far  been  educated. "^^  Dr.  Nisbet  was  cordial 
and  invited  Taney  to  visit  him  often.  The  young 
student  spent  "many  a  pleasant  evening"  at  his  house, 
"enjoying  and  profiting  by  the  elder  man's  conversa- 
tion, which  was  cheerful  and  animated,  full  of  anecdote 
and  of  classical  allusions  and  seasoned  with  lively  and 
playful  wit."  Mrs.  Nisbet  also  took  an  interest  in  the 
youth  and  "never  failed,  when  she  had  an  opportunity, 
to  give"  him  "a  regular  course  of  motherly  instruction 
and  advice,"  delivered  in  a  "dialect  so  broadly  Scotch" 
that  "half  of  what  she  said"  failed  to  be  understood. 
Taney  had  a  great  respect  for  Dr.  Nisbet  as  a  teacher, 
but  thought  less  highly  of  Dr.  Davidson.^o     Taney  and 

Those  on  the  dead  languages  and  classical  education,  and  the  character  of  the 
principal  classic  authors,  beginning  with  Homer  and  ending  with  Seneca,  C3ver 
112  pages.  Those  on  criticism  cover  296  pages,  and  those  on  logic,  178  pages." 
I  have  not  found  these  volumes. 

18  Tyler,  p.  38. 

19  Tyler,  p.  38. 

20  Tyler,  p.  42. 


16  ROGER   BROOKE   TANEY 

all  the  students  were  much  attached  to  a  fourth  member 
of  the  faculty,  Charles  Huston,  who  taught  Latin  and 
Greek,  and  found  him  an  accomplished  scholar,  ''happy 
in  his  mode  of  instruction."  In  a  friendly  manner, 
he  was  willing  to  aid  in  his  difficulties,  a  boy  disposed  to 
study.  Taney  entered  the  College  not  sufficiently 
advanced  in  his  preparation  to  become  a  Junior,  but 
with  more  than  enough  instruction  to  become  a  Sopho- 
more. Professor  Huston^i  saw  that  Taney  and  a  class- 
mate, who  was  in  a  like  situation,  "would  be  idle  and 
unemployed  for  the  greater  part"  of  the  time,  if  they 
"were  held  back  and  confined"  to  the  Sophomore  studies. 
Consequently,  he  proposed  that  the  two  boys  be  put  in 
a  class  by  themselves  and  be  given  an  "opportunity, 
by  close  application,  to  overtake  the  Junior  class,  so 
as  to  be  ready  to  enter  with  them  the  Senior  year  and 
to  graduate  with  them.  "Taney  and  John  Lyon,"  the 
other  youth,  "gladly  accepted  his  proposition;"  both, 
"perhaps,  flattered  by  the  good  opinion"  of  the  teacher, 
and  "anxious  not  to  disappoint  him."  By  hard  study 
and  helping  one  another,  they  gained  on  the  class  be- 
fore them,  and,  as  Taney  proudly  related,  "when  we 
were  examined  with  them,  preparatory  to  our  admission 
to  the  Senior  Class,  we  were,  by  no  means,  the  worst 
scholars."  During  the  whole  course,  Taney  states; 
"I  studied  closely,  was  always  well  prepared  in  my 
lessons,  and,  while  I  gladly  joined  my  companions,  in 
their  athletic  sports  and  amusements,  I  yet  found  time 
to  read  a  great  deal  beyond  the  books  we  were  required 
to  study.  And  as  my  course  of  reading  was  selected 
by  myself  and  governed  by  the  impulse  or  taste  of  the 
moment,  it  was  rather  desultory,  and  some  of  it  not 

21  Tyler,  p.  44.    Huston  in  later  life  was  a  Judge  of  the  Supreme  Court  of 
Pennsylvania. 


ROGER   BROOKE  TANEY  17 

wisely  selected."  Almost  all  of  his  time  was  spent  at 
Carlisle.  "The  difficulties  of  the  journey"  were  so 
great  that  Taney  returned  home  but  twice,  and  upon 
both  occasions  walked  from  Carlisle  to  Baltimore^^ 
with  a  "school-companion,  performing  the  journey  in  a 
little  over  two  days"  and  reaching  "Owings  Mills, 
within  twelve  miles  of  Baltimore,  on  the  evening  of  the 
second  day." 

At  Dickinson,  as  in  all  contemporary  American  col- 
leges, there  were  two  secret  literary  societies.  Taney 
belonged  to  the  Belles  Lettres  Society,  and,  when  the 
Senior  year  was  drawing  to  a  close,  was  put  forward  by 
his  friends  in  that  Society  as  its  candidate  for  the  honor 
of  the  valedictory  address,  an  honor  conferred  at  Car- 
lisle by  ballot  of  the  graduating  class.  The  election  was 
a  close  one;  but,  through  the  efforts  of  John  Lyon, 
Taney  secured  the  coveted  honor. ^^  The  election  had 
been  "animated  and  exciting,"  but  was  "conducted 
with  perfect  good  humor  and  kind  feelings."  Its  result 
gratified  Taney  very  much;  but,  "as  most  commonly 
happens  to  successful  ambition  in  a  wider  world," 
he  "soon  found  that  success  had  brought  with  it  troubles 
and  anxieties  to  which  "  he  "had  before  been  a  stranger. " 
An  oration  had  to  be  written,  which  might  "attract 
attention  and  provoke  criticism"  from  the  audience; 
but  first  it  was  to  be  submitted  to  Dr.  Nisbet,  and 
Taney  ^^feared  he  might  find  it  all  wrong,^'  since  Taney 
"was  unaccustomed  to  composition."  In  the  Belles 
Lettres  Society,  the  "exercises  had  consisted  in  de- 
bating a  question  agreed  on,  or  of  delivering  an  oration 
selected  from  some  speech  and  committed  to  memory, 
or  in  reciting  passages  from  a  poem  or  play."     This 

22  Tyler,  p.  ?>7. 

23  Tyler,  pp.  47-50. 


18  ROGER   BROOKE   TANEY 

experience  had  helped  him  but  little.  He  wrote  that 
''the  manual  labor  of  writing  was  always  unpleasant 
to  me;  and,  although  some  of  the  members  of  the  So- 
ciety, occasionally,  wrote  out  their  speeches  and  read 
them  in  the  debates,  and  sometimes  read  an  essay  upon 
some  subject  selected  by  themselves,  yet  I  never  had 
done  so.  My  speeches  in  the  debate  were  always  made 
from  very  brief  notes,  unintelligible  and  unmeaning 
to  anybody  but  myself — consisting  of  the  heads  and 
order  of  the  argument  I  intended  to  offer,  each  head  con- 
taining only  a  few  words,  to  recall  to  my  memory  the 
point  I  meant  to  urge.  And  when  I  sat  down  to  write 
the  valedictory  oration,  I  had  never  written  a  para- 
graph of  my  own  composition,  except  familiar  and 
unstudied  letters  to  my  family."  After  expending 
much  ** trouble  and  anxiety"  upon  the  oration,  it  was 
submitted  to  Dr.  Nisbet  and,  to  the  writer's  relief,  it 
was  returned  ''with  only  one  or  two  verbal  altera- 
tions. "^4  The  day  for  the  public  examination  arrived, ^^ 
an  exercise  attended  by  "most  of  the  trustees,  or  visi- 
tors, who  were  in  town  and  sometimes  by  other  gentle- 
men of  literary  taste."  Taney,  with  his  classmates, 
about  twenty  in  number,  passed  that  ordeal,  and  then 
had  a  vacation  of  three  or  four  weeks  before  Commence- 
ment Day.  On  that  august  occasion,  the  exercises 
were  held  in  the  Presbyterian  Church, ^^  in  which  a 
"large  platform  of  unplaned  plank  had  been  erected  in 
front  of  the  pulpit."  Taney  gives  us  a  vivid  picture 
of  his  part  in  the  ceremonies.  "In  front  of  him  was  a 
crowded  audience  of  ladies  and  gentlemen;  behind 
him,  on  the  right,  sat  the  professors  and  trustees  in  the 

24  Tyler,  p.  51. 
26  Tyler,  p.  46. 
26  Tyler,  p.  53. 


ROGER   BROOKE   TANEY  19 

segment  of  the  circle;  and  on  the  left,  in  like  order,  sat 
the  graduates  .  .  .  .  ;  and  in  the  pulpit,  con- 
cealed from  public  view,  sat  some  fellow-student,  with 
the  oration  in  his  hand,  to  prompt  the  speaker,  if  his 
memory  should  fail  him."  Taney  was  "sadly  fright- 
ened and  trembled  in  every  limb"  and  his  'Voice  was 
husky  and  unmanageable."  He  was  "much  morti- 
fied" by  this;  and  the  "feeling  of  mortification  made 
matters  worse.  Fortunately  he  continues,  "my  speech 
had  been  so  well  committed  to  memory,  that  I  went 
through  without  the  aid  of  the  prompter.  "^^ 

After  graduation  in  the  fall  of  1795,  Taney,  then 
eighteen  and  a  half  years  old,  returned  home  and  re- 
mained there  during  the  following  winter,  "which  was 
idly  spent  in  the  amusements  of  the  country. "  Taney's 
father  "kept  a  pack  of  hounds  and  was  fond  of  fox 
hunting. "28  "It  was  the  custom  to  invite  some  other 
gentleman,  who  also  kept  fox  hounds,  to  come  with  his 
pack  on  a  particular  day  and  they  hunted  with  the 
two  packs  united.  Other  gentlemen,  who  were  known 
to  be  fond  of  the  sport,  were  also  invited,  so  as  to  make 
a  party  of  eight  or  ten  persons,  and  sometimes  more. 
The  hunting  usually  lasted  a  week.  The  party  always 
rose  before  day,  breakfasted  most  commonly  on  spare- 
ribs  (or  bacon)  and  hominy — drank  pretty  freely  of 
eggnog,  and  then  mounted  and  were  in  the  cover,  where 
they  expected  to  find  a  fox  before  sunrise.  The  foxes 
in  our  county  were  mostly  the  red,  and,  of  course, 
there  was  much  hard  riding  over  rough  ground,  and  the 
chase  was  apt  to  be  a  long  one.     We  rarely  returned 

27  A  letter  from  Taney  to  Rev.  Dr.  Wm.  B.  Sprague  concerning  one  of  his 
classmates  is  printed  in  the  "Annals  of  the  American  Pulpit,"  Vol.  IV,  p.  188, 
and  Tyler,  p.  451. 

28  Tyler,  p.  55. 


20  ROGER   BROOKE  TANEY 

home  until  late  in  the  day;  and  the  evening  was  spent 
in  gay  conversation  on  the  events  and  mishaps  of  the 
day,  and  in  arrangements  for  the  hunt  of  the  morrow, 
or  in  playing  whist  for  moderate  stakes.  There  was 
certainly  nothing  like  drunkenness  or  gambling  at 
these  parties.  I  myself  never  played.  By  the  end  of 
the  week,  the  hunters  and  dogs  were  pretty  well  tired, 
and  the  party  separated.  But  before  they  parted,  a 
time  was  always  fixed  when  my  father  was  to  bring  his 
dogs  to  his  friend's  house,  or  they  were  to  meet  by  invi- 
tation at  the  house  of  some  other  gentleman  of  the 
party,  where  another  week  would  be  passed  in  like 
manner;  and  these  meetings,  with  intervals  of  about  a 
fortnight  or  three  weeks,  were  kept  up  until  the  end  of 
the  season.  I  joined  in  all  of  them:  and,  when  not  so 
engaged,  my  father,  with  my  elder  brother  and  myself, 
hunted  with  his  own  dogs,  when  the  weather  was  fit. 

I   liked  it  and  enjoyed  it  greatly.     For 

although  my  health  was  not  robust,  and  eggnog  was 
very  apt  to  give  me  a  headache,  yet,  in  the  excitement 
of  the  morning,  I  forgot  the  fatigues  of  the  preceding 
day,  and  rode  as  hard  as  anybody,  and  followed  the 
hounds  with  as  much  eagerness."  After  a  winter  of 
this  sort,  however,  Taney  felt  "tired  of  this  idle  life 
and  impatient  to  begin  the  study  of  law,"  the  profes- 
sion his  father  decreed  him  to  follow  and  which  he  him- 
self preferred. 


CHAPTER   II 

Law  Student  at  Annapolis  (1796-1798) 

In  the  spring  of  1796,  Taney  went  to  Annapolis  to 
begin  reading  law  in  the  office  of  Jeremiah  Townley 
Chase,  one  of  the  Judges  of  the  General  Court.^  "This 
Court  had  original  jurisdiction  in  all  civil  cases  through- 
out the  State  of  Maryland,  when  the  matter  in  dis- 
pute exceeded  £1,  in  Maryland  currency  ($2.66f), 
and  in  criminal  cases  of  the  higher  grade.  It  sat  twice 
a  year  in  Annapolis  for  the  Western  Shore,  and  twice 
at  Easton  for  the  Eastern  Shore;  and  jurors  from  every 
county  of  the  respective  Shores  were  summoned  to 
attend  it."  County  Courts  took  its  place,  when  the 
General  Court  was  abolished  in  1805,  having  been 
continued  until  that  time,  **by  the  confidence  the  people 
entertained  in  the  ability  and  impartiality  of  the  tri- 
bunal." "The  Court  consisted  of  three  judges,  always 
selected  from  the  eminent  men  of  the  bar;  the  jurors 
from  each  county  were  taken  from  the  most  respectable 
and  intelligent  class  of  society  ....  The  ex- 
tent of  its  jurisdiction  and  the  importance  of  the  cases 
tried  in  it,  brought  together,  at  its  sessions,  all  that 
were  eminent  or  distinguished  at  the  bar  on  either  of 
the  Shores  for  which  it  was  sitting. "  For  these  reasons, 
the  Court  was  "continued  so  long,"  although  it  was 
"exceedingly  inconvenient  to  the  suitors  in  the  distant 
counties  to  attend  it,  and  the  cost  of  bringing  witnesses 
to  Annapolis,  and  Easton,  and  keeping  them  there  some- 
times for  weeks  together,  was  oppressive  and  often 
ruinous  to  the  parties. " 

1  Tyler,  p.  56. 

21 


22  ROGER   BROOKE   TANEY 

To  Annapolis,  almost  everybody  came  on  horse- 
back, except  those  coming  from  Baltimore,  who  often 
took  boat,  and  the  sessions  at  the  State's  capital  were 
the  more  important  ones,  on  account  of  the  greater 
"population,  extent  of  territory,  and  commercial  char- 
acter of  the  Western  Shore."  Because  of  the  sessions 
of  this  court,  Annapolis  was  considered  the  best  place 
in  Maryland,  ''where  a  man  should  study  law,  if  he 
expected  to  attain  eminence  in  his  profession."  Taney 
became  one  of  twenty  or  thirty  such  students,^  then 
reading  law  in  various  offices. 

He  plunged  into  the  study  of  law  with  ambition  and 
ardor,  and,  "for  weeks  together,  read  law  twelve  hours 
in  the  twenty-four."  In  the  retrospect,  he  was  "con- 
vinced that  this  was  mistaken  diligence"  and  that  he 
would  have  profited  more,  if  he  had  read  "law  four  of 
five  hours  and  spent  some  more  hours  in  thinking  it 
over  and  considering  the  principle  it  established  and 
the  cases  to  which  it  could  be  applied. "  He  determined 
"not  to  go  into  society,"  until  his  studies  were  com- 
pleted, and  he  "adhered  to  that  determination."  "In 
the  midst  of  the  highly  polished  and  educated  society, 
for  which  that  city  was  at  that  time  distinguished," 
Taney  "never  visited  in  any  family  and  respectfully 
declined  "the  kind  and  hospitable  invitations"  he 
received,  though  he  was  only  nineteen  years  of  age, 
when  he  came  to  Annapolis.  He  associated  only  with 
the  students,  and  studied  closely.  Here,  again,  in 
later  years,  Taney  became  satisfied  "that  it  would  have 
been  much  better  for  me,  if  I  had  occasionally  mixed  in 
the  society  of  ladies  and  gentlemen  older  than  the 
students.  My  thoughts  would  often  have  been  more 
cheerful,   and   my  mind  refreshed   for  renewed  study, 

2  Tyler,  p.  58. 


ROGER   BROOKE   TANEY  23 

and  I  should  have  acquired  more  ease  and  self-pos- 
session, in  conversation  with  men  eminent  for  their 
talents  and  position,  and  learned  from  them  many 
things  which  law  books  do  not  teach." 

Reading  law  in  the  office  of  a  judge,  instead  of  in 
that  of  a  practicing  lawyer,  gave  Taney  ''more  time  for 
uninterrupted  study;"  but,  on  the  whole,  he  felt  that 
it  had  been  a  disadvantage  to  him,  since  there  was  ''no 
instruction  in  the  ordinary  routine  of  practice,  nor 
any  information  as  to  the  forms  and  manner  of  plead- 
ing,"  further  than  "could  be  gathered  from  the  books." 
"In  the  office  of  a  lawyer,"  Taney  wrote, ^  "the  atten- 
tion of  the  student  is  daily  called  to  such  matters,  and 
he  is  employed  in  drawing  declarations  and  pleas,  gen- 
eral and  special,  until  the  usual  forms  become  famil- 
iar to  his  mind,  and  he  learns,  by  actual  practice  in 
the  office,  the  cases  in  which  they  should  be  respec- 
tively used,  and  what  averments  are  material,  and  what 
are  not."  He  felt  that  the  "want  of  this  practical 
knowledge  and  experience"  had  been  a  "serious  incon- 
venience." Because  of  this  fact,  "for  some  time  after 
entering  upon  practice,"  he  "did  not  venture  to  draw 
the  most  ordinary  form  of  a  declaration  or  pleas,  with- 
out a  precedent"  before  him.  If  a  declaration  for  the 
plaintiff  was  needed,  "varying  in  any  degree  from  the 
ordinary  money  counts,"  or  a  "special  plea"  was  nec- 
essary for  the  defence,  he  examined  "the  principles  of 
pleading  which  applied  to  it,  and  endeavored  to  find  a 
precedent  for  a  case  of  precisely  that  character;  nor 
was  it  so  easy,  in  that  day,  for  an  inexperienced  young 
lawyer  to  satisfy  himself  upon  a  question  of  special 
pleading."  Printed  forms  were  inadequate,  the  ex- 
isting form  books  were  incomplete  and  the  great  im- 

3  Tyler,  p.  60. 


24  ROGER   BROOKE   TANEY 

portance  of  the  adjective  law  was  such  that  Taney 
forgets  to  tell  us  of  any  reading  in  the  substantive  law. 
"  In  that  day,  strict  and  nice  technical  pleading  was  the 
pride  of  the  bar,  and  I  might  almost  say  of  the  Court, " 
Taney  adds.  His  success  was  so  great,  in  learning 
pleading  and  practice,  that  we  shall  see  him  recognized 
by  his  colleagues  as  the  expert  in  those  subjects,  among 
the  Justices  of  the  Supreme  Court. 

Taney  became  an  intimate  friend  of  William  Car- 
michael,  who  had  come  from  the  Eastern  Shore  to  read 
law  in  another  ofhce  in  Annapolis.  The  young  men 
roomed  together  for  a  year,  and  every  night  discussed 
together,  for  "mutual  information,"  the  reading  of  the 
day.  With  some  other  students,  Taney  formed  a  de- 
bating society,  but  they  rarely  discussed  legal  questions. 
Their  object  was  to  prepare  themselves  for  the  bar, 
"by  the  practice  of  oral  arguments"  among  themselves. 
There  was  no  moot  court,  for  the  leaders  of  the  Annap- 
olis bar  did  not  encourage  the  formation  of  one  among 
the  students.  Instead  of  such  a  court,  Judge  Chase 
advised^  Taney  "to  attend  regularly  the  sittings  of  the 
General  Court,  to  observe  how  the  eminent  men  at  the 
bar  examined  the  witnesses  and  brought  out  their  case, 
and  raised  and  argued  the  questions  of  law,  and  after- 
wards to  write  a  report  of  it  for  his  own  use."  Taney 
followed  his  advice,  and  "reported  a  good  many  cases," 
but  threw  them  into  the  fire,  when  he  examined  them 
after  he  had  been  admitted  to  the  bar,  being  convinced 
by  this  examination,  "that  no  one  was  fit  to  be  a  re- 
porter, who  was  not  an  accomplished  lawyer." 

The  first  session  of  the  General  Court  which  Taney 
attended,  made  a  strong  impression  upon  him.^     The 

*  Tyler,  p.  62. 
6  Tyler,  p.  64. 


ROGER   BROOKE   TANEY  25 

three  Judges,  wearing  scarlet  cloaks,  sat  in  chairs  placed 
on  an  elevated  platform;  and  all  the  distinguished 
lawyers  of  Maryland  were  assembled  at  the  bar.  Taney 
was  familiar  ''with  their  names  and  standing,"  for  his 
"fox-hunting  friends"  in  Calvert  County  ''had  been 
jurors  to  that  Court,  and  had  frequently  talked  to 
him  about  the  great  lawyers  they  had  seen  and  heard 
at  Annapolis."  The  young  student  gazed  "with  deep 
interest  upon  the  array  of  talent  and  learning"  and 
looked  forward  to  the  day,  when  he  might  "occupy  the 
like  position  in  the  profession,"  receiving  the  emolu- 
ments the  leading  lawyers  received,  and  holding  the 
"high  rank  and  social  position,  which  were  in  that  day" 
great  inducements  to  "ambition  for  legal  eminence." 
Luther  Martin  was  then  "the  acknowledged  and  un- 
disputed head  of  the  profession"  in  Maryland.^  Wil- 
liam Pinkney  was  abroad.  When  he  "returned  from 
England  and  resumed  the  practice,  the  reign  of  Martin 
was  at  an  end."^  Over  a  half  century  later,  Taney, 
having  "heard  almost  all  the  great  advocates  of  the 
United  States,  both  of  the  past  and  present  generation, " 
wrote,  that  "I  have  seen  none  equal  to  Pinkney." 
Three  years  passed^  of  close  study  in  Judge  Chase's 
office,  and  then  Taney  was  admitted  to  the  practise  in 
the  spring  of  1799.  His  timidity  made  him  fear  that 
he  should  break  down  in  his  "first  essay  at  the  bar." 
He  could  not  write  out  a  speech,  for  he  "could  not  know 
precisely  what  the  evidence  would  be,  nor  what  points 
might  arise,"  and  he  knew  that  he  "must  be  able  to 
think  and  exercise  the  power  of  reasoning,"  while  ''he 
was  speaking,  and  while  he  was  conscious  that  every 

« Tyler,  pp.  65-69. 
'  Tyler,  pp.  69-74. 
8  Tyler,  p.  75, 


26  ROGER   BROOKE   TANEY 

one  was  looking"  at  him  and  listening  to  him.  There- 
fore, a  "very  humble  forum" — the  Mayor's  Court  at 
Annapolis — was  selected  for  Taney's  ''first  effort." 
The  Mayor  was  a  "good  natured,  old  gentleman," 
who  "had  never  studied  law,"  and  Taney  was  quite 
sure  that  he  "knew  more  law  and  had  more  capacity 
also,  than  the  Mayor,  or  any  of  the  aldermen  who  sat 
with  him,"  to  try  "petty  offences  committed  within  the 
precincts  of  the  city.  "^  Gabriel  Duvall,  then  a  Judge 
of  the  General  Court  and  afterwards  a  Judge  of  the 
Supreme  Court  of  the  United  States,  was  the  Recorder, 
but  he  did  not  regularly  attend  court,  and  Taney  "had 
no  suspicion  that  Judge  Duvall,"  for  whom  the  young 
lawyer  "had  the  highest  respect,  would  think  it  worth 
his  while  to  preside  at  the  trial"  of  the  case  of  a  man 
whom  Taney  was  to  defend  and  who  had  been  "indicted 
for  assault  and  battery,  in  which  very  little  mischief 
had  been  done  to  either  party."  Before  the  Court  and 
Jury  whom  he  expected  to  appear,  Taney  thought  that 
he  could  "speak  without  confusion,"  if  he  could  ever 
do  so.  A  fellow  student,  who  had  also  just  been  ad- 
mitted to  the  bar,  was  associated  with  Taney  in  the 
defence.  Just  as  the  jury  had  been  empanelled  and 
the  young  attorneys  "felt  quite  brave  and  men  of  some 
consequence,"  to  their  "utter  dismay,  in  walked  Re- 
corder Duvall,  with  his  grave  face  and  dignified  deport- 
ment, and  took  his  seat  on  the  bench."  Taney  and 
his  associate  were  both  frightened,  for  they  "had  been 
accustomed  to  see  him  administering  Justice  in  the 
General  Court,  and  listening  to  the  first  lawyers  of  the 
State."  They  thought  that  he  would  contrast  the 
efforts  of  the  tyros  with  those  of  the  leaders  of  the  bar. 
They  could  not  draw  back,   however,   and   found   his 

» Tyler,  p.  76. 


ROGER   BROOKE   TANEY  27 

manner  kind  and  encouraging.  Taney  remembered  the 
case  years  later,  as  ''a  very  good  one  for  a  speech.  As 
almost  always  happens,  when  a  fight  takes  place  in  an 
excited  crowd,  there  was  much  contradictory  testi- 
mony, and  it  was  difficult  to  say  whether  our  client 
committed  the  assault,  or  struck  in  self  defence." 
Taney  "watched  the  testimony  carefully,  as  it  was 
given  in;"  but  took  no  notes,  for  his  hand  shook  so  that 
he  ''could  not  have  written  a  word  legibly,"  if  his 
"life  had  depended  on  it."  In  his  vivid  recollection 
of  the  scene,  he  recalled  that,  "when  I  rose  to  speak,  I 
was  obliged  to  fold  my  arms  over  my  breast,  pressing 
them  firmly  against  my  body;  and  my  knees  trembled 
under  me,  so  that  I  was  obliged  to  press  my  limbs 
against  the  table  before  me,  to  keep  me  steady  on  m.y 
feet."  Yet,  "by  a  strong  effort  of  the  will,"  he  "man- 
aged to  keep  possession  of  the  reasoning  faculties,  and 
made  pretty  good  argument  in  the  case,  but  in  a  trem- 
ulous and  somewhat  discordant  voice."  The  verdict 
was  in  favor  of  Taney's  client,  but  this  fact  hardly 
consoled  the  young  lawyer  "for  the  timidity"  he  "had 
displayed  and  the  want  of  physical  firmness,  which 
seemed"  to  him  "to  be  little  better  than  absolute 
cowardice." 

Taney  never  quite  became  free  of  "this  morbid 
sensibility,  "1^  and,  "in  the  first  years  of  his  practice," 
found  it  so  painful  that  it  might  have  led  him  to  abandon 
the  practice  of  the  law,  if  he  could  have  afTorded 
to  live  without  it.  He  tells  us  that  "I  never,  for  a 
moment,  thought  of  engaging  in  any  other  pursuit.  I 
knew  that  my  father  and  family  had  formed  high  hopes 
of  my  future  eminence  and  that  a  great  deal  of  money 
had  been  spent  on  my  education.     So   I  determined, 

10  Tyler,  p.  79. 


28  ROGER   BROOKE   TANEY 

from  the  first,  to  march  forward  in  the  path  I  had  chosen, 
and,  whatever  it  might  cost  me,  to  speak  on  every  oc- 
casion, professional  or  political,  when  my  duty  required 
it."  He  added  that  a  ''firm  and  resolute  will  can  do  a 
great  deal,"  yet  he  felt  that,  "upon  many  occasions 
throughout"  his  "professional  career,"  this  "morbid 
sensibility"  had  given  him  ''deep  pain  and  mortifi- 
cation." Throughout  his  long  professional  life,  he 
"was  never  able  entirely  to  conquer  it."  Taney  diag- 
nosed the  "source  of  this  misfortune,"  as  his  delicate 
health.  His  health  had  been  infirm  from  his  "earH- 
est  recollection,"  and  his  "system  was  put  out  of  order 
by  slight  exposure."  "The  excitement  and  mental 
exertion  of  a  Court  which  lasted  two  or  three  weeks" 
caused  Taney  to  feel,  at  the  end  of  it,  that  his  "strength 
was  impaired"  and  that  he  "needed  repose."  He 
never  knew  whether  this  "sensibility"  would  "harass" 
him  or  not,  until  he  rose  to  speak.  "  Chiefly  on  account 
of  the  consciousness  of  his  weakness,"  he  "uniformly 
refused  to  make  a  Fourth  of  July  address,  or  to  speak 
upon  any  of  those  occasions  where  an  orator  of  the  day 
is  a  part  of  the  ceremony."  His  recollection  was, 
that:  "Although  I  had  been  some  years  in  the  practice, 
when  I  made  my  first  speech  in  the  Court  of  Appeals  of 
Maryland,  and  many  more,  when  I  first  appeared  in 
the  Supreme  Court  of  the  United  States,  I  felt  it  on 
each  of  these  occasions  nearly  as  much,  as  when  I  tried 
the  case  in  the  Mayor's  Court.  Even  in  the  courts  in 
which  I  was  familiar,  and  where  I  had  risen  to  the  first 
rank  of  the  profession  and  tried  almost  every  case  of  any 
importance,  I  have  sometimes  felt  it  at  the  beginning  of 
a  term,  although  I  had  so  mastered  it  that  nobody  per- 
ceived it  but  myself." 


CHAPTER  III 

Lawyer  in  Calvert  County  and  Member  of  the 
House  of  Delegates  (1798-1801) 

Shortly  after  his  admission  to  the  bar,  Taney  returned 
to  Calvert  County,  as  his  father  desired  he  should 
begin  practice  there,  "attending  also  the  Courts  in  the 
adjoining  counties."  Taney  felt  that  "it  was  not  a 
very  desirable  theatre  for  a  lawyer,  for  the  counties 
were  small  and  the  population  agricultural,  so  that 
there  were  but  few  controversies  of  much  moment,  and 
a  lawyer  confined  to  those  counties,  even  in  full  prac- 
tice, could  hope  for  little  more  than  a  mere  support." 
Taney's  father  had,  however,  "ulterior  objects,"  in 
wishing  that  his  son  should  settle  in  Calvert.  He  had, 
frequently,  sat  in  the  House  of  Delegates  at  Annapolis, 
as  a  member  from  his  county  and  "he  looked  upon 
distinction  in  the  profession  of  the  law  as  a  stepping 
stone  to  political  power."  He  believed  that  his  son, 
on  whose  "capacity  he  placed  high  hopes,"  could  more 
readily  make  his  "way  into  public  life  from  that  part 
of  the  State,  than  from  any  other  and  might  then  se- 
lect a  more  suitable  theatre  for  the  practice  of  the  law. " 
He  proposed,  therefore,  that  Roger  Taney  become  a 
candidate  for  the  House  of  Delegates,  ^  and  the  latter 
was  "sufficiently  imbued  with  political  ambition  to  be 
willing  to  go  at  once  into  political  life."  Furthermore, 
he  was  "not  a  little  flattered  at  the  idea  of  becoming" — 
at  the  age  of  twenty-two  years — a  member  of  that 
General  Assembly,  in  whose  membership  he  had  seen 
every  year  "some  of  the  most  distinguished  men  of  the 

iTyler,p.81. 

29 


30  ROGER   BROOKE   TANEY 

State"  and  to  whose  debates  he  had  listened,  while  he 
was  a  law  student  at  Annapolis. 

He  feared,  however,  that  he  could  not  be  elected; 
for  he  had  been  *' absent  from  the  county,  with  short 
intervals,"  from  his  boyhood  and  was  ''personally 
known  to  very  few  of  its  inhabitants."  The  son  was 
unwilling  to  begin  his  political  career  with  a  defeat,  but 
the  father  thought  there  was  no  danger  of  that.  The 
father's  friends  agreed  with  him,  and  so  Roger  Taney 
permitted  his  candidacy  to  be  announced.  He  was  a 
Federalist,  to  which  party  his  "family  and  friends 
generally  belonged;"  but,  at  that  period,  "it  was  not 
thought  expedient,  or  right  in  principle,  to  carry  these 
party  divisions  and  conflicts  into  the  concerns  of  the 
State,  and  the  election  of  the  candidate  depended  on 
his  personal  weight  and  supposed  fitness  for  the  posi- 
tion and  the  influence  of  friends  who  took  an  interest 
in  him."  At  the  election  of  1799,  five  candidates 
presented  themselves  in  Calvert  County,  but  only  four 
members  were  to  be  chosen.  At  that  period,  the  elec- 
tors for  the  whole  county  came  to  vote,  viva  voce,  at 
the  Court  House  in  the  little  hamlet  of  Prince  Fred- 
ericktown  in  the  center  of  the  county.  The  area  of  the 
county  is  about  215  square  miles,  and  the  population 
was  8652  in  1790,  nearly  the  same  as  now,  for  there  has 
been  little  change  in  the  number  of  inhabitants  during 
the  century  and  a  quarter  which  have  passed.  About 
half  of  the  population  were  negroes  and  the  property 
qualification  for  voters  had  not  yet  been  abolished,  so 
that  there  were  only  a  few  hundred  men  who  could 
exercise  the  elective  franchise.  The  sheriff  held  the 
election,  which  lasted  four  days,  at  the  end  of  which 
time  he  closed  polls  and  proclaimed  in  a  loud  voice, 
the  names  of  those  who  were  chosen.     During  the  time 


ROGER   BROOKE   TANEY  31 

that  the  polls  were  open,  the  candidates  "sat  on  a  raised 
bench,  immediately  behind  the  sheriff,  so  that  each  of 
them  could  see  and  be  seen  by  every  voter."  Taney 
relates  that:  "When  a  voter  came  up,  every  candidate 
began  to  solicit  his  vote  and  press  his  own  name  upon 
him;  and  as  many  of  the  voters  cared  very  little  about 
the  candidates,  except  the  particular  favorite  he  came 
to  support,  I  think  it  very  likely  that  the  skilful  in  these 
struggles  sometimes  obtained  votes  that  would  other- 
wise have  been  given  to  another. "  Jests  and  rough  and 
ready  repartees  abounded,  but  Taney  "made  no  great 
figure  in  that  part  of  the  contest,"  because  of  lack  of 
experience  and  of  knowledge  of  the  voters  even  by  name. 
Fortunately  for  him,  some  of  his  friends  often  stood 
near  and  spoke  for  him.  At  the  closing  of  the  polls, 
Taney  was  one  of  those  chosen  in  a  close  election.  He 
felt  that  he  owed  his  success  to  "the  active  and  ener- 
getic support  of  a  few  personal  and  popular  friends." 
The  Court  room  was  crowded  to  hear  the  result  and 
Taney,  "very  modestly,  returned  thanks,  in  a  brief 
speech,"  for  the  honor  given  him. 2  The  speech  "was 
received  with  loud  hurrahs"  and  he  "was,  immediately, 
placed  in  a  chair,  raised  upon  the  shoulders  of  the 
crowd,  and  marched  in  triumph  about  the  courthouse 
green."  The  other  successful  candidates  were  also 
cheered,  but  Taney  was  the  "only  one  accustomed  to 
public  speaking  and  the  only  one  who  made  a  speech." 
The  Session  of  the  General  Assembly,  to  which 
Taney  was  elected,  began  on  Monday,  November  5, 
j[799  3  'pj^g  House  of  Delegates  was  composed  of  four 
members  from  each  of  the  nineteen  counties  into  which 

2  Tyler,  p.  83. 

3  William  D.  Carcaud,  William  D.  Browne,  and  Walter  Mackall  were  the 
other  Delegates  from  Calvert  County. 


32  ROGER   BROOKE   TANEY 

Maryland  was  divided  and  two  each  from  the  cities  of 
Baltimore  and  Annapolis.  Taney  took  a  remarkably 
prominent  position  in  the  House,  considering  his  youth 
and  inexperience  in  public  affairs.  Instead  of  referring 
each  bill  to  a  standing  committee,  the  practice  then  was 
to  appoint  special  committees  to  bring  in  or  report  on 
bills.  We  find  him  appointed  to  serve  upon  many  such 
committees  and  even  named  as  chairman  of  some  of 
them;  for  example,  those  upon  superintending  the 
revenue^  and  on  coroners  and  sheriffs.^  He  served  as 
member  of  committees,  to  bring  in  an  insolvency  bill,^ 
to  settle  the  rate  of  interest  on  open  accounts,^  to  have 
the  State  relinquish  its  right  to  certain  lots,^  to  compel 
the  attendance  of  members,^  to  regulate  constables' 
fees,!^  on  a  claim  of  Thomas  Contee  against  the  State, ^^ 
on  a  lost  certificate  issued  by  the  sheriff  of  Calvert 
County,  12  on  an  appropriation  for  Charlotte  Hall  Acad- 
emy, ^^  on  the  conference  committee  on  the  Governor's 
message,  1^  on  a  Bank  at  Fell's  Point  in  Baltimore 
City,^^  on  a  road  in  Talbot  County,  ^^  on  confiscated 
property,!^  on  the  State's  stock  in  the  Bank  of  England, ^^ 
on  a  private  road  by  Thomas  Owings'  grist  and  fulling 

*  December  13. 

•'January  2. 

^November  6  and  14. 

'November  8. 

8  November  12. 

'  November  12.    On  December  7  he  voted  to  do  this. 

1°  November  14. 

"  November  15. 

12  November  16.    He  reported  for  this  committee. 

"  November  19.    He  reported  favorably  for  the  committee  on  November  26. 

1*  November  24.    He  reported  an  answer  to  the  Senate  on  November  27. 

"  November  25. 

18  November  28. 

1'  December  9. 

18  December  9. 


ROGER   BROOKE  TANEY  33 

mill,  where  he  had  rested  on  his  way  home  from  col- 
lege some  years  before/^  on  a  letter  from  the  Governor 
of  Virginia  concerning  a  hospital, ^^  on  partition  of 
estates  of  decedents,^!  on  the  better  preservation  of 
wills,22  and  on  pensions  to  widows  of  Revolutionary 
soldiers.23  He  voted  to  abolish  the  property  qualifica- 
tion for  voters^'*  and  against  the  repeal  of  a  per  diem 
allowance  for  legislators,^^  holding  that  the  repeal  would 
tend  to  ''exclude  from  the  House  all  persons  not  possessed 
of  affluent  fortunes."  He  also  voted  against  a  State 
subscription  to  the  Bank  of  Baltimore,  and  to  establish 
an  academy  at  Easton.^^ 

The  act  of  his  which  he  remembered  with  most  pleas- 
ure half  a  century  later,  was  his  support  of  "the  law 
authorizing  a  canal  between  the  Chesapeake  and  Dela- 
ware Bays^'27  which  made  a  short  route  between  Balti- 
more and  Philadelphia.  ' '  This  law  was  strongly  opposed 
by  the  Baltimore  interest,"  which  feared  diversion  of 
trade  from  the  City,  "brought  out  a  great  deal  of  dis- 
cussion and  was  carried  through  with  much  difficulty." 
Taney  tells  us  that  he  "took  an  active  part  in  favor  of 
it"  and  that  he  felt  that,  before  the  session  ended,  he 
"was  listened  to  with  respect  and  attention, "  whenever 
he  spoke. 

While  the  Assembly  met,  General  Washington  died. 
The  news  reached  Annapolis  in  the  evening,^^  and,  on 

"  December  10. 

20  December  13. 

21  December  13. 

22  December  16. 

23  December  23. 

24  November  12. 
26  November  19. 

26  December  27. 

27  Tyler,  p.  84.    November  27  and  December  4. 

28  Tyler,  p.  84. 


34  ROGER   BROOKE  TANEY 

the  next  morning,  "immediately  after  the  Houses  were 
organized,  the  Senate  sent  down  a  message  to  the 
House  of  Delegates,"  by  Charles  Carroll  of  Carrollton 
and  John  Eager  Howard,  "proposing  to  pay  appropriate 
honors."  Over  half  a  century  later,  Taney  wrote, 
"I  never  witnessed  a  more  impressive  scene.  The  two 
honored  Senators,  with  their  grey  locks,  stood  at  the 
bar  of  the  House,  with  the  tears  rolling  down  their 
cheeks.  The  Speaker  and  members  rose  to  receive 
them,  and  stood,  while  the  message  was  delivered.  It 
was  no  empty,  formal  pageant.  It  was  the  outward 
sign  of  the  grief  within,  and  few  were  present  who  did 
not  shed  tears  on  the  occasion.  My  eyes,  I  am  sure, 
were  not  dry." 

Early  in  January,  the  session  ended  and  Taney  re- 
turned home.  In  the  retrospect,  he  felt  that  the  ex- 
perience "was,  certainly,  of  much  advantage  to  me  in 
my  future  life."  The  discussions  enabled  him  "to 
speak  with  less  sense  of  embarrassment"  and  dimin- 
ished his  "morbid  sensibility."  He  was  also  brought 
"into  familiar  association  with  the  most  distinguished 
men  in  the  State,  in  debate  and  in  the  conduct  of  public 
affairs."  Laying  aside  his  "solitary  habits,"  Taney 
had  "mixed  freely  in  the  society  of  the  place,  which, 
at  that  period,  was  always  gay  during  the  session  of 
the  General  Assembly  and  highly  cultivated  and  re- 
fined." He  was  not  always  at  ease  in  society,  and  his 
"defective  vision,"  which  rendered  it  difficult  for  him 
to  recognize  faces  of  persons  he  had  not  seen  frequently, 
made  him  "feel  awkward  and  uncomfortable,  on  en- 
tering a  room."  "This  imperfect  vision,"  Taney  re- 
marked with  some  melancholy,  "is  a  most  unfortunate 
infirmity  for  a  man  in  public  life,  who  must  unavoid- 
ably become  acquainted  with  a  multitude  of  people, 


ROGER   BROOKE  TANEY  35 

whose  good  will  he  desires  to  preserve.  And  there  is 
no  readier  way  to  lose  it  than  to  pass,  without  a  sign  of 
recognition,  one  to  whom  perhaps  you  were  introduced 
the  day  before  and  familiarly  conversed  with."  Taney 
feared  that  this  defective  eyesight  had  caused  him  to 
pass  often  without  knowing  them,  men  for  whom  he 
"entertained  a  real  respect  and  regard."  His  eyes 
stood  use  well,  so  that  in  1854  he  wrote:  "I  can  now 
read  ordinary  print,  or  write,  by  the  light  of  a  single 
candle;  but  I,  sometimes,  pass  my  own  children  on  the 
street  without  knowing  them,  until  they  speak  to  me.  "^^ 

After  Taney's  return  from  Annapolis,  he  passed  some 
time  "idly.  There  was  very  little  professional  busi- 
ness to  occupy  me,"  he  wrote,  as  he  recalled  those 
days,  "and  I  read  very  little  law,  and  not  a  great  deal 
of  anything  else.  What  I  did  read  was  chiefly  belles 
lettres,  or  political  and  historical  writings.  I  mixed  but 
little  in  the  society  of  the  county,  and  returned  again 
very  much  to  my  retired  domestic  life,  spending  my 
time  with  my  own  family.  Indeed  I  have  always  loved 
the  country  and  country  scenes,  too  much  to  study, 
except  in  the  long  nights  of  winter.  When  the  weather 
permitted,  I  was  always  out,  wandering  on  the  shore  of 
the  river,  or  in  the  woods,  much  of  the  time  alone, 
occupied  with  my  own  meditations,  or  sitting,  often 
for  hours  together,  under  the  shade,  and  looking  almost 
listlessly  at  the  prospect  before  me.  There  was  always 
a  love  of  the  romantic  about  me,  and  my  thoughts  and 
imaginings,  when  alone,  were  more  frequently  in  that 
direction  than  in  the  real  business  of  life."^^ 

Whatever  earnest  work  he  did,  was  chiefly  done  with 
a  view  to  familiarize  himself  with  the  "business  of  the 

29  Tyler,  p.  87. 

30  Tyler,  p.  87. 


36  ROGER  BROOKE  TANEY 

State/'  so  as  to  qualify  himself  to  take  a  leading  part 
at  the  next  session  of  the  House  of  Delegates,  to  which 
he  had  high  hopes  of  a  reelection.  It  was,  however, 
the  year  of  the  Presidential  election,  and  the  question 
as  to  the  method  of  choosing  Presidential  electors  was 
one  "upon  which  the  whole  State  became  agitated,  and 
the  election  of  the  candidate  in  every  county  was  sup- 
ported, or  opposed,  according  to  his  opinions  on  this 
question,"  instead  of  according  to  "his  personal  popu- 
larity." The  Federalist  leaders,  probably  instigated 
by  Robert  Goodloe  Harper,  who  had  recently  removed 
to  Maryland  from  South  Carolina,  advocated  the  choice 
of  the  electors  by  the  Legislature,  instead  of  by  popu- 
lar vote  in  districts,  as  the  existing  statute  required. 
The  Federalist  leaders,  as  "always,  too  sanguine," 
wished  for  a  vote  by  general  ticket,  believing  that  they 
could  carry  the  State,  but  they  could  not  secure  such 
a  law,  for  "the  political  power  was  in  the  hands  of  the 
counties."  The  agricultural  population  of  the  coun- 
ties "were  very  jealous  of  the  growing  influence  of 
Baltimore  and,  unwilling  to  give  the  commercial  in- 
terest any  increase  of  power,  fearing  it  would  be  used 
in  a  manner  that  might  prove  injurious  to  the  landed 
interest.  And  if  a  legislature  composed  of  a  majority 
of  Federalists,  had  passed  a  law  by  which  the  majority 
in  the  counties  might  be  overwhelmed  by  a  sweeping 
majority  in  town,  they  would  have  been  inevitably 
ruined  in  the  counties,  and  lost  all  influence  in  the  State 
Government."  The  only  hope  then  to  secure  the  vote 
of  the  whole  State  for  John  Adams  was  to  have  the 
matter  "put  to  the  people,  as  organized  in  the  State 
Government,   and   not   to   the   numerical   majority.  "^^ 

»  Tyler,  p.  88-92-;  see  also  Steiner's  "Life  of  James  McHenry,"  Chapter 
XVI. 


ROGER  BROOKE  TANEY  37 

This  proposal  was  opposed  by  the  Jeffersonians  on  the 
ground  that  it  "took  away  the  rights  of  the  people," 
and  some  of  Adams'  supporters  agreed  with  this  view; 
but  Taney  ''did  not  see  the  force  of  this  objection," 
claiming  that  each  voter,  whether  casting  his  "vote 
for  the  Electors,  or  for  members  of  the  Legislature, 
designated  the  person  whom  he  wished  to  be  President ; 
and  his  share  of  the  sovereign  power  was  equally  exer- 
cised, whether  he  accomplished  his  object  by  voting 
immediately  for  the  President  preferred,  or  appointing 
an  agent,  or  several  agents,  to  execute  his  wishes." 
Taney  was  the  only  speaker  among  the  Federalist 
candidates,  and  addressed  three  or  four  public  meet- 
ings during  the  canvass.  He  was  confident  of  success; 
but,  to  his  surprise,  in  a  close  vote,  three  of  the  four 
Federalist  candidates  in  the  county,  including  himself, 
were  defeated.  The  Federalists  lost  control  of  the 
Legislature,  and  the  power  of  the  State  was  found 
"in  the  hands  of  the  Republican  party"  of  Jefferson. 
Adams'  unpopularity  in  Maryland  contributed  greatly 
to  this  result.  The  defeat  greatly  mortified  Michael 
Taney  and  his  son,  and  "put  an  end  to  any  prospect  of 
immediate  political  elevation"  for  the  latter.  He  had 
never  intended  to  reside  permanently  in  Calvert  County 
and  felt  that  "there  was  no  object  to  be  gained  by  con-, 
tinning  there  any  longer."  Neither  father  nor  son 
wished  that  Roger  Taney  remain  in  Calvert  for  another 
year,  as  he  wrote:  "doing  nothing  to  advance  me  in 
my  profession,  but  wasting  my  time  in  small  contests 
for  county  ascendancy."  Where  then,  should  he  set- 
tle P^^  Father  and  son  "had  many  consultations  upon 
the  subject."  The  father  suggested  Baltimore,  but  the 
son  "had  scarcely  any  personal   acquaintances  there** 

82  Tyler,  p.  94. 


38  ROGER  BROOKE  TANEY 

and  feared  that,  without  them,  he  "should  be  lost  in  a 
large  city."  He  then  suggested  Frederick,  a  town 
which,  next  to  Annapolis  and  Baltimore,  "was,  with  a 
view  to  profit,  the  best  point  of  practice  in  the  State." 
Then,  too,  one  of  the  two  leaders  of  that  bar  had  re- 
cently retired  from  practice  and  the  other,  Arthur 
Shaaff,  was  removing  to  Annapolis.  The  remaining 
members  of  the  Frederick  bar  were  young,  most  of 
them  being  but  a  few  years  older  than  Taney.  He 
had  also  formed  friendships,  when  he  was  at  Annapolis, 
with  some  young  men  who  resided  in  Frederick  and 
felt  that  he  "should  not  there  be  as  lonely  and  without 
friends"  on  his  first  arrival,  as  he  would  have  been  in 
Baltimore.  Michael  Taney  yielded  to  his  son's  argu- 
ments, and,  in  March  1801,  Roger  Taney  took  up  his 
residence  in  Frederick,  and  made  his  first  speech  in  the 
Court  there — a  "volunteer  speech,"  made  at  the  in- 
vitation of  Mr.  Shaaff ,  who  still  practiced  in  Frederick, 
in  one  of  his  cases,  in  order  to  give  Taney  "an  oppor- 
tunity of  appearing  before  the  public.  "^^ 

2'  Tyler,  p.  95.  It  is  with  deep  regret  that  we  lose  the  assistance  of  Taney's 
precious  autobiography  at  this  point  in  his  life — would  he  had  written  more 
of  it! 

Miss  Eleanor  Murdoch  Johnson,  of  Frederick,  possesses  a  letter  written  by 
Taney  from  Annapolis  on  July  2,  1799,  in  which  he  states: 

"By  the  advice  of  Mr.  Chase  I  qualified  in  the  County  Court  and  on  the  19th 
of  June,  in  the  year  of  our  Lord  1799,  I  commenced  Attorney-at-Law.  I  made 
my  Maiden  speech  on  the  Friday  following,  in  defence  of  as  great  a  scoundrel 
as  ever  lived,  who  was  indicted  for  a  felony.  However,  what  he  had  done 
was  only  a  private  fraud,  and  not  a  felony  in  the  eye  of  the  law,  so  that  I 
felt  myself  perfectly  justifiable  in  defending  him,  as  every  man  ought  to  be 

punished  only  according  to  the  laws  of  his  country He  was  acquitted. 

Watts  and  I  defended  him.     But  the  fellow  was  too  poor  to  give  us  any  fees." 

In  the  letter  which  was  addressed  to  William  Potts,  then  living  in  Baltimore, 
Taney  apologizes  for  not  writing  before,  because  he  "was  very  much  engaged 
during  the  whole  of  the  General  Court,  in  attending  to  the  proceedings  and 
taking  notes  on  the  points  that  were  raised."  He  was  undecided  where  to 
settle,  but  had  "given  up  all  thoughts  of  coming  to  Baltimore." 


ROGER  BROOKE  TANEY 

From  a  silhouette  made  in  Frederick  about  1820 


CHAPTER  IV 

Law  Practice  at  Frederick  (1801-1823) 

According  to  the  census  of  1790,  the  rich,  agricul- 
tural country  of  Frederick,  had  a  population  of  30,791, 
and  the  town  of  the  same  name,  which  was  the  county 
seat,  contained  2606  people.  The  county  was  larger 
geographically  than  at  present,  for  it  then  contained 
the  western  half  of  the  present  Carroll  County.  Fol- 
lowing the  fertile  valleys  between  the  parallel  ranges 
of  the  Appalachians,  the  Brunners,  the  Brengles,  the 
Ramsburgs  and  Getzendanners,  and  many  another 
immigrant  from  the  Rhine  Country  had  come  into 
this  area  between  1730  and  1740,  and  had  met  there 
men  like  Thomas  Schley  and  other  Germans,  who  had 
come  from  Baltimore  across  Parr's  Ridge  by  the  old 
Frederick  Road.^  To  Frederick  also  had  come  men 
of  English  stock,  like  the  Thomases  and  Johnsons 
from  Southern  Maryland,  like  Potts  and  Sheredine. 
The  county  was  set  apart  in  1748  and  the  town  was 
laid  out  about  1745,  and  each  took  its  name  with  a  sort 
of  squinting  reference  to  the  heir  apparent,  for  Frederick, 
son  of  George  II,  was  Prince  of  Wales,  and  the  Prince's 
friend,  Charles,  Lord  Baltimore,  had  named  his  son, 
Frederick,  in  his  honor.  There  were  some  manufactur- 
ers; but,  for  the  most  part,  the  people  were  farmers,  and 
the  best  of  farmers.  There  were  few  negroes,  except 
household  slaves,  and  the  farms  were  worked  either 
by  their  owners,  or  by  tenants  who  leased  them  on 
shares.  The  little  *' mountain  city"  lay  in  the  valley 
of  the  Monocacy,  which  stretches  from  the  Linganore 

1  Tyler,  p.  95. 

39 


40  ROGER   BROOKE   TANEY 

Hills  to  the  Catoctin  Mountain — a  valley  which  already 
was  smiling  and  ''fair  as  the  garden  of  the  Lord." 

The  National  Pike  ran  west  from  the  town  by  Brad- 
dock's  Spring,  where  the  ill  fated  General's  army  camped 
for  the  night,  down  into  the  lovely  Middletown,  or 
Pleasant  Valley,  and  then  across  the  Blue  Ridge, 
dipping  down  again  into  the  valley  of  the  Conocheague, 
passing  the  future  battle  field  of  Antietam  on  the  left, 
and  leading  on  to  the  county  seat  of  Washington  County, 
a  town  which  its  founder,  Jonathan  Hager,  tried  to 
call  after  his  wife,  Elizabeth;  but  which  the  people 
insisted  should  bear  his  name,  and  be  known  as  Hagers- 
town.  To  the  south  of  Frederick  lay  the  tract  of  land 
known  as  Carrollton  Manor — more  often  called  The 
Manor,  which  belonged  to  the  Carrolls,  and  from  which 
the  most  famous  of  that  family  took  his  epithet.  To 
the  north,  the  road  led  past  the  village  of  Woodsboro', 
stretching  along  its  one  street,  to  Creagerstown,  near 
which  had  been  the  first  church  of  the  German  settlers 
on  the  Monocacy,  and  to  Double  Pipe  Creek,  near 
which  stream  stood  the  dwelling  of  John  Ross  Key. 

His  son,  Francis  Scott  Key,  had  graduated  at  St. 
John's  College  in  1796,  and,  as  a  lawyer,  had  studied 
law  with  Taney  at  Annapolis,  After  a  brief  time  spent 
at  Frederick,  he  settled  at  Georgetown  in  the  District 
of  Columbia,  and  was  building  up  for  himself  one  of 
the  largest  practices  before  the  Supreme  Court  of  the 
United  States.  His  reputation  as  a  lawyer  is  forgotten, 
but  his  fine  hymn  beginning  with  the  line,  "Lord, -with 
glowing  heart  I'd  praise  thee,"  is  still  in  the  hymnaries, 
and  his  authorship  of  the  National  Anthem  has  made 
his  memory  secure  in  the  heart  of  every  American.  He 
had  one  sister,  Ann  Phoebe  Charlton  Key,  and  Taney's 
friendship  for  the  brother  led  to  his  introduction  into 


ROGER   BROOKE   TANEY  41 

the  household,  to  his  love  for  the  sister,  and  to  his  mar- 
riage of  her. 

The  little  town  of  Frederick  was  the  second  in  size  in 
the  whole  State,  being  surpassed  in  population  only  by 
Baltimore,  the  commercial  emporium.  Its  best  known 
resident  had  been  Governor  Thomas  Johnson,  who  had 
come  from  Southern  Maryland,  had  become  the.  first 
governor  of  the  State,  and  had  been  the  friend  of  Wash- 
ington. He  lived  at  Rose  Hill  about  a  mile  from  the 
town,  and,  as  he  was  a  native  of  Calvert  County,  and  a 
friend  of  Taney's  father,^  the  young  lawer  often  went 
thither  to  consult  with  him  on  professional  matters, 
and  to  talk  of  the  men  and  events  of  the  Revolution. 
Johnson  had  retired  from  practice,  and  could  tell  how 
he  had  nominated  Washington  in  1775,  as  Commander- 
in-Chief  of  the  American  forces,  and  how,  as  the  first 
President  of  the  United  States,  Washington  had,  in 
vain,  endeavored  to  induce  Johnson  to  accept  the 
Secretaryship  of  State  or  a  seat  on  the  Bench  of  the 
Supreme  Court.  His  niece  was  the  wife  of  John  Quincy 
Adams.  The  Hansons  and  the  Thomases,  who  had 
intermarried,  were  as  prominent  as  the  Johnsons. 
John  Hanson  had  been  a  delegate  from  Maryland  to 
the  Confederation  Congress,  and  had  served  as  its 
President  in  1781.  John  Hanson  Thomas,  whose 
family  also  was  a  Southern  Maryland  one,  was  a  patron 
of  Taney  in  the  early  days.  Nor  must  the  Pottses  be 
forgotten.  Richard  Potts,  the  head  of  the  family, 
had  sat  at  the  Continental  Congress,  and  had  been  a 
United  States  Senator,  and  his  wife's  position  in  the 
community  was  such  that  as  late  as  1870,  the  old  negro 
women,  in  scornful  contempt  of  the  wife  of  a  parvenu 
would  say:  ''She  must  think  she's  Mrs.  Dicky  Potts." 

2  Tyler,  p.  98. 


42  ROGER   BROOKE   TANEY 

Besides  these  families  of  English  descent,  stood  the 
representatives  of  the  early  German  settlers,  such  as 
Colonel  Stephen  Steiner,  who  was  at  this  time,  pre- 
paring to  build  the  fine  spire  of  the  Evangelical  Reformed 
Church,  which  is  central  of  those  '* clustered  spires  of 
Frederick,"  standing  "green  walled  by  the  hills  of 
Maryland."  Another  representative  of  these  families, 
Henry  S.  Geyer,  was  soon  to  emigrate  to  Missouri,  des- 
tined to  become  United  States  Senator  therefrom,  and 
also  to  become  counsel  for  the  alleged  master,  in  the 
great  Dred  Scott  Case — so  fateful  in  Taney's  career. 
The  major  part  of  the  townspeople  were  of  German 
descent.  Some  few  of  them  were  children  of  Hessian 
soldiers  who  had  surrendered  with  Burgoyne,  had 
been  confined  in  Frederick  in  the  barracks  they  built 
on  a  hill  to  the  south  of  the  town,  and  had  preferred  to 
remain  in  America  after  the  treaty  of  peace.  Among 
the  people  of  the  town,  was  a  quiet  woman,  one  Bar- 
bara Fritchie,  the  wife  of  a  glover.  Neither  she  nor 
Taney  ever  had  any  idea  that  she  would  be  the  heroine  of 
a  famous  poem,  and  that  an  act  of  patriotism  attrib- 
uted to  her,  would  make  her  one  of  Frederick's  notables. 

In  the  town  of  Frederick,  Taney  lived  and  practiced 
law  for  nearly  a  quarter  of  a  century.  There,  as  a 
writer  stated  in  1838,  he  ''showed  that  he  possessed  a 
mind  of  the  highest  order,  that  judgment,  acuteness, 
penetration,  capacious  memory,  accurate  learning, 
steady  perseverance  in  the  discharge  of  duty,  a  lofty 
integrity,  united  with  a  grave  and  winning  elocution."^ 

Mr.  Justice  Wayne,  who  had  sat  on  the  Supreme  Bench 
with  Taney  throughout  the  whole  of  the  latter's  long 
judicial  career,  in  his  memorial  address  upon  Taney  in 
1864,  referred  to  the  fact^  that  Taney's  ''general  de- 

3  4So.Lit.Mess.  (1838),  p.  348. 

4  2  Wallace  X. 


ROGER  BROOKE   TANEY  43 

meaner,  studious  habits,  and  pure  life  gave  him  the 
good  will  and  confidence  of  the  people  of  Frederick." 
During  the  years  of  his  residence  there,  he  ''made 
himself  familiar  with  the  history  of  the  law  in  all  its 
relations;  for  the  organization  of  government,  for  the 
preservation  of  human  rights,  and  also  with  those 
principles  which  had  sprung  from  the  instincts  of  men 
as  to  right  and  wrong,  or  which  had  been  arbitrarily 
made,  in  ancient  and  later  times,  to  rule  the  rights  of 
property  and  the  general  conduct  of  persons  in  society, 
in  connection  with  their  obligations  to  authority. 
.  .  .  .  That  course  of  reading  and  reflection  famil- 
iarized him  with  the  consideration  of  human  rights, 
and  strengthened  his  ability  and  disposition  to  maintain 
them.  But  he  was  no  enthusiast.  He  thought  that 
men  had  not  been  solely  the  victims  of  power,  but  of 

circumstances,    in   all    times He  thought 

that  God  had  designed  for  men  rights,  whatever  might 
be  the  condition  of  their  humanity,  which  could  not  be 
taken  from  them  by  fraud,  by  violence,  or  by  avarice, 
with  impunity  from  God's  chastisement." 

Taney's  practice  had  become  so  well  established, 
when  he  had  been  five  years  at  the  Frederick  bar,  that 
he  was  justified  in  marrying,  and  he  wedded  the  sister 
of  his  friend,  Francis  Scott  Key,  at  her  father's  home, 
on  January  7,  1806.  He  had  met  her  at  Annapolis, ^ 
and  "her  beauty  and  bright  mind  and  womanly  graces 
w^on  his  heart."  Tyler  tells  us  that  "the  mansion 
where  she  was  born  was  of  brick,  with  center  and  wings 
and  long  porches.  It  was  situated  amidst  a  large 
lawn,  shaded  by  trees  and  extensive  terraced  garden 

^  Tyler,  p.  101.  A  portrait  of  Taney,  painted  by  Emanuel  Lentze  for  Mr. 
Campbell,  and  purchased  by  the  sale  of  his  effects  by  Mr.  Etting,  was  offered 
for  sale  by  Rosenbach  of  Philadelphia  in  1917. 


44  ROGER  BROOKE  TANEY 

adorned  with  shrubbery  and  flowers.  Nearby  flowed 
Pipe  Creek,  through  dense  woods.  A  copious  spring  of 
pure  water,  where  young  people  loved  to  retire  and  sit 
under  the  sheltering  oaks  in  summer,  was  at  the  foot 
of  the  hill.  A  meadow  of  waving  grass  spread  out 
toward  the  Catoctin  Mountain,  which  could  be  seen  at 
sunset,  curtained  in  clouds  of  crimson  and  gold.^  Taney 
was  a  Roman  Catholic,  while  the  Keys  were  devout 
members  of  the  Protestant  Episcopal  Church,  and  so, 
according  to  the  rule  of  the  day,  the  children  should 
follow  the  faith  of  the  parent  of  their  own  sex.  The  only 
son  of  the  marriage  died  young,  and  the  six  daughters 
were  all  brought  up  as  Protestants.^  Taney  seems 
never  to  have  tried  to  proselyte  his  family,  and,  when 

6  Key  offered  the  place  for  sale  in  1822.     13  Md.  Hist.  Mag.  p.  129. 

7  McHenry  Howard,  Esq.,  in  "Some  Old  English  Letters,"  II  9  Md.  Hist. 
Mag.,  p.  108,  discusses  the  Key  family.  Mrs.  Taney  was  four  years  younger 
than  her  brother,  and  was  born  June  13,  1783,  and  died  September  29, 1855. 
Taney's  children  were:  1)  Anne  Arnold  Key,  born  August  24,  1808,  married 
James  Mason  Campbell,  Esq.,  of  Baltimore,  on  May  27,  1834,  at  Wash- 
ington; 2)  Elizabeth  Maynadier,  born  April  8, 1810,  married  William  Stevenson, 
a  Baltimore  merchant  and  had  no  children;  3)  EUen  Mary,  born  August  29, 
1813,  died  unmarried  September  28,  1871;  4)  Augustus  Brooke,  born  Sep- 
tember 15,  1815,  died  in  infancy;  5)  Sophia  Brooke,  bom  December  31,  1817, 
married  Colonel  Francis  Taylor,  U.  S.  A.,  and  had  one  son,  Roger  Taney, 
who  had  no  issue;  6)  Maria  Key,  born  February  19,  1819,  married  Major 
Richard  T.  Allison,  U.  S.  A.  and  C.  S.  A.,  afterwards  Clerk  of  the  Superior 
Court  of  Baltimore  City,  and  had  no  issue;  7)  Alice  Carroll,  born  June  25, 
1827,  died,  unmarried,  of  yellow  fever  in  September,  1855.  Those  who  knew 
her  long  remembered  her  loveliness.  Mrs.  CampbeU  had  a  large  family:  1) 
Phoebe  Key,  born  June  23,  1836,  married  Rev.  Augustus  P.  Stryker,  and 
had  two  sons.  Rev.  Mason  Campbell  Stryker  and  Heber  Halsey  Stryker,  of 
Hartford,  Connecticut;  2)  Mary  Monica,  born  December  25,  1838,  married 
Winfield  Scott  Anderson  and  had  Rev.  Roger  Brooke  Taney  Anderson;  3) 
Alice  Taney,  bom  March  17,  1841,  married  Colonel  Frank  Marx  Etting, 
U.  S.  A.,  and  had  no  children;  4)  Roger  Brooke  Taney,  bom  June  3,  1843,  died 
unmarried;  5)  Anne  Taney,  born  February  10,  1846,  died  unmarried;  6) 
Elizabeth  Maynadier,  bom  March  24,  1849,  died  unmarried;  7)  Amy  Main- 
waring,  bom  March  11,  1854,  died  unmarried.  The  above  information  has 
been  obtained  from  Messrs.  McHenry  Howard  and  E.  Glenn  Perine. 


ROGER   BROOKE   TANEY  45 

a  priest  tried  to  urge  the  claims  of  the  Roman  Catholic 
Church  at  Taney's  table,  one  day,  he  was  promptly 
rebuked  with  the  remark:  *'I  never  permit  religion  to 
be  discussed  at  my  table."  On  the  other  hand,  Mrs. 
Taney  did  not  object  to  her  daughters  attending  serv- 
ice at  the  Roman  Catholic  Church,  when  they  had 
been  to  worship  at  All  Saints'  Protestant  Episcopal 
Church  in  the  morning;  but  would  frequently  say, 
when  the  bell  for  vespers  rang,  and  Taney  prepared 
to  leave  the  house  in  order  to  attend  service:  ''Girls, 
which  one  of  you  will  go  to  church  tonight  with  your 
father?'^ 

Taney  himself  was  very  devout  and  regular  in  the 
performance  of  religious  duties,  as  he  understood  them, 
and,  during  his  residence  in  Frederick,  was  to  be  seen 
every  morning  in  the  little  chapel  of  the  Jesuit  novitiate. 
There  he  buried  his  mother,^  and  thither  his  own  body 
was  brought  to  be  laid  by  her  side.  The  body  of  Mrs. 
Taney,  however,  as  she  died  a  Protestant,  could  not  be 
interred  beside  her  husband's,  in  ground  consecrated 
by  the  rites  of  his  church,  and  so  he  laid  it  beside  those 
of  her  relatives,  in  the  beautiful  Mt.  Olivet  Cemetery, 
at  the  other  end  of  the  town. 

Shortly  before  his  death,  Taney  wrote  a  cousin, 
Ethelbert  Taney,  ''the  only  one  left  of  the  name  from 
whom"  he  ever  received  a  letter,  and  said  that,  in  look- 
ing forward  toward  the  close  of  life,^  "most  thankful 
I  am,  that  the  reading,  reflection,  studies,  and  experi- 
ences of  a  long  life  have  strengthened  and  confirmed 
my  faith  in  the  Catholic  Church,  which  has  never 
ceased  to  teach  her  children  how  they  should  live  and 
how  they  should  die." 

3  Tyler,  p.  143. 
9Tyler,  p.  475. 


46  ROGER   BROOKE  TANEY 

Tyler,  who  was  both  an  intimate  friend  and  a  Prot- 
estant, states  that  Taney  never  obtruded  "hisrehgious 
doctrines  upon  any  one.  He  often  talked  to  me,  in 
incidental  conversations,  on  the  general  subject  of 
religion;  but  the  mantle  of  his  charity  was  as  broad  as 
the  sinning  world."  Just  before  Taney  left  Frederick, 
in  September,  1822,  the  Rev.  John  McElroy  took 
charge  of  the  Roman  Catholic  Church  there,  and,  in 
1871,  when  over  ninety  years  of  age,  he  wrote  Tyler, 
at  the  latter's  solicitation,  ''concerning  Judge  Taney's 
practical  religion "^^  "that  his  well  known  humility 
made  the  practice  of  confession  easy  to  him.  Often  have 
I  seen  him  stand  at  the  outer  door  leading  to  the  con- 
fessional, in  a  crowd  of  penitents,  a  majority  colored, 
awaiting  his  turn  for  admission.  I  proposed  to  introduce 
him  by  another  door  to  my  confessional,  but  he  would 
not  accept  of  any  deviation  from  the  established 
custom.  "11 

Mr.  Justice  Daniel  told  Tyler^^  that,  at  one  time, 
"while  all  the  judges  were  boarding  at  the  same  house 
in  Washington,  and  before  the  hour  for  going  up  to 
the  Court"  he  opened  the  door  of  Taney's  room,  and 
"found  him  on  his  knees  at  prayer."  Daniel  "with- 
drew instantly,  much  mortified  that  he  had  forgotten 
to  rap  before  he  entered  the  room,"  and,  when  he 
apologized  for  the  intrusion,  Taney  replied  that  "It  was 
his  custom,  before  he  began  the  duties  of  the  day,  to 
seek  divine  guidance  through  prayer."  Tyler  added 
that  Taney's  "religion  was  the  moving  principle  of 
his  life." 

10  Tyler,  p.  476. 

"  Father  McElroy  added  that,  "in  Washington,  he  continued  to  practice  all 
the  duties  prescribed  by  the  Catholic  Church." 
"Tyler,  p.  477. 


ROGER   BROOKE   TANEY  47 

In  November,  1803,  the  legislature  of  Maryland 
authorized  Taney  and  six  other  men  to  superintend  a 
lottery  to  raise  $3600  with  which  to  complete  the  beauti- 
ful Roman  Catholic  Church  in  Frederick.  The  man- 
agers gave  bond  in  the  following  February,  delivered 
the  prizes  to  the  "fortunate  adventurers"  within 
six  months,  and  ''applied  the  proceeds  to  the  com- 
pletion of  the  church  within  two  years.  "1^ 

Except  for  the  subject  of  religion,  Taney  and  his 
wife  were  not  divided,  and  his  love  for  her  was  life- 
long and  tender.  His  friendship  for  his  brother-in-law 
was  close,  and,  for  years,  the  two  families  met  annually 
at  the  Key  homestead^^  to  enjoy  a  family  reunion,  and 
to  close  each  day  with  family  prayers,  the  negroes  being 
summoned  to  meet  with  the  family,  while  the  exercises 
were  conducted  by  Francis  Scott  Key,^^  or  by  his  mother, 
when  he  was  absent.  Tyler  tells  us  that^^  ''no  man  was 
ever  more  happily  married  than  Mr.  Taney.  And  the 
happy  circumstances  of  this  period  shed  a  benign 
influence  over  his  studious  and  contemplative  life,  and 
nurtured  that  bland  suavity  of  manner  which  distin- 
guished him,  while  they  made  the  home-circle  the 
sphere  of  his  happiness." 

"  Edward  S.  Delaplaine,  "Chief  Justice  Roger  B.  Taney — His  career  at 
the  Frederick  Bar,"  in  13  Md.  Hist.  Mag.  109  at  p.  127,  reprinted  in  Am.  Law 
Rev.  for  July-August,  1918.  In  August,  1917, 1  suggested  to  Mr.  Delaplaine, 
a  talented  young  member  of  the  Frederick  Bar,  who  has  served  his  county  with 
credit  for  two  terms  in  the  House  of  Delegates,  that  he  take  up  this  subject, 
which  he  has  handled  thoroughly,  and,  by  his  treatment  of  it,  has  placed  every 
student  of  Taney's  life  under  obligations. 

14  Tyler,  p.  101. 

^2  Taney's  friendship  for  Key  was  lifelong,  and  was  shown  by  such  acts  as 
the  trip  which  Taney  took  in  1814  to  Georgetown,  where  Key  resided,  to  try  to 
persuade  Key's  family  to  stay  with  him,  or  with  Key's  father  in  the  country, 
until  the  danger  from  the  British  invasion  should  be  past  ^Preface  to  Key's 
Poems). 

"  Tyler,  p.  102. 


48  ROGER   BROOKE   TANEY 

He  was  fond  of  society,  and,  on  Independence  Day, 
was  wont  to  dine  with  a  group  of  friends,  under^*^ 
the  beech  trees  on  the  banks  of  the  Monocacy,  some 
two  miles  from  Frederick.^^  A  good  horseman,  he  took 
pleasure  in  the  excursions  made  necessary,  when  he 
accompanied  juries  to  try  cases  upon  view  of  the  land 
involved,  and  the  memory  of  the  loveliness  of  the  Catoc- 
tin  Mountain,  seen  when  he  was  upon  such  expedi- 
tions, remained  ever  with"  him.  Mrs.  Taney  partici- 
pated in  this  love  of  nature,  and  both  of  them  greatly 
enjoyed  the  visits  they  paid  with  their  children  to  her 
bachelor  cousin,  Arthur  Shaaff,  the  lawyer,  at  his 
country  seat,  Arcadia,  a  few  miles  from  Frederick.  Both 
the  husband  and  wife  were  ''passionately  fond  of 
flowers,"  and  Taney  ''always  thought  well  of  one  who 
liked  them.  "IS  In  a  letter  from  Washington  to  his 
wife  on  April  1,  1850,  he  mentioned  that  he  found  "the 
hyacinths  in  bloom  in  the  Capitol  grounds  and  walked 
about  them  alone,  after  the  Court  adjourned,  to  en- 
joy the  marks  of  the  opening  spring." 

After  Taney's  death,  the  Rev.  Dr.  Clover,  an  Epis- 
copal clergyman,  paid  Mrs.  Taney  this  tribute :^^  "Mrs. 
Taney  was  a  woman  of  a  noble  and  cultivated  mind, 
of  deep  religious  convictions,  and  of  a  truly  catholic 
spirit.  Courted  by  the  influential,  the  affluent,  and 
the  fashionable,  she  cast  aside  the  pleasures  and  attrac- 
tions of  the  world,  that  she  might  the  more  fully  and 
freely  devote  her  life  to  the  Saviour.  From  many  an 
abode  of  virtuous  poverty  in  the  City  of  Baltimore, 
the  prayer  of  gratitude  has  gone  up  in  her  behalf  to 
heaven.  One  of  the  most  unselfish  women  I  have 
ever  known,  her  life  was  a  beautiful  exemplification, 

"  Tyler,  p.  103. 

18  Jas.  Mason  Campbell  to  Tyler,  November  4,  1864.    Tyler,  p.  470. 

"  Tyler,  p.  469. 


ROGER   BROOKE  TANEY  49 

not  only  of  active  benevolence,  but  of  that  spirit  of 
true  charity  so  admirably  depicted  by  the  Apostle 
Paul."  William  Schley,  who  had  known  her  from  his 
childhood,  also  bore  testimony^''  to  her  being  ''em- 
phatically the  friend  of  the  poor — a  kind  neighbor,  a 
true  friend,  and  an  exemplary  Christian." 

Tyler  tells  us  that^^  ''The  Chief  Justice  and  Mrs. 
Taney  seemed  to  be  made  for  each  other.  The  two 
made  their  home  all  but  perfect  in  parental  love  and 
filial  piety."  He  had  been  an  intimate  friend  of  the 
family  and  had  been  given  to  read  the  letters  from 
Taney  to  his  wife,  through  a  period  of  nearly  fifty 
years.  These  letters  enabled  Tyler  to  write  with  the 
greater  confidence  of  the  "singular  purity  and  felicity 
of  the  private  life  which  these  letters  reveal.  "22  She 
"was  a  woman  of  high  intelligence  as  well  as  culti- 
vation," and  so  was  in  every  way  a  fit  mate  for  her 
husband. 

In  the  letter  we  have  already  quoted,  Taney  wrote 
with  tender  solicitude, ^s  ''Having  just  left  you  all, 
my  room  is  lonely  and  sad  today,  and  I  feel  much  more 
disposed  to  lie  down  and  think  of  you  all  at  home  than 
do  anything  else.  This  bright  weather  will,  I  hope, 
continue,  and  enable  you  to  exercise  and  be  more  in  the 
open  air.     How  glad  I  should  be  to  walk  with  you." 

Nearly  two  years  later,  he  wrote  her,  on  January  7, 
1852,  a  letter  so  charming  as  to  deserve  quotation  in  full  :^^ 

I  cannot,  my  dearest  wife,  suffer  the  7th.  of  January  to  pass 
without  renewing  to  you  the  pledges  of  love  which  I  made  to  you 
on  the  7th.  of  January,  forty-six  years  ago.     And,  although  I 

2°  Proceedings  of  Baltimore  Bar  in  honor  of  Taney,  October  14,  1864. 

21  Tyler,  p.  470. 

22  Tyler,  p.  472. 

23  Tyler,  p.  471. 

24  Tyler,  p.  316. 


50  ROGER   BROOKE   TANEY 

am  sensible  that,  in  that  long  period,  I  have  done  many  things 
that  I  ought  not  to  have  done,  and  have  left  undone  many  things 
which  I  ought  to  have  done,  yet  in  constant  affection  to  you  I  have 
never  wavered — never  being  insensible  how  much  I  owe  to  you — 
and  now  pledge  you  again  a  love  as  true  and  sincere,  as  that  I 
offered  you  on  the  7th.  of  January,  1806,  and  shall  ever  be  your 
affectionate  husband. 

R.  B.  Taney. 

In  September,  1855,  while  Taney  was  spending  the 
summer  at  Old  Point  Comfort,  where  he  had  begun  his 
autobiography,  both  Mrs.  Taney  and  an  unmarried 
daughter,  Alice,  sickened  with  yellow  fever  and  died.^^ 
A  few  days  afterwards,  Father  McElroy^^  called  on 
him  in  Baltimore.  In  his  visitor's  words:  "He  was 
very  much  crushed  and  broken  in  spirits,  after  such  a 
severe  bereavement,  as  might  be  expected.  He  re- 
ceived me,  however,  with  his  usual  kindness  and  cour- 
tesy. During  my  visit,  a  gentleman,  with  his  car- 
riage, sent  to  let  Mr.  Taney  know  that  he  came  expressly 
to  give  him  a  little  airing  in  a  drive  to  the  country  for 
an  hour  or  two.  He  sent  for  answer  that  he  must  de- 
cline his  kind  offer;  and,  then  turning  to  me,  he  said: 
'The  truth  is.  Father,  that  I  have  resolved  that  my 
first  visit  should  be  to  the  Cathedral,  to  invoke  strength 
and  Grace  from  God,  to  be  resigned  to  his  holy  will, 
by  approaching  the  altar  and  receiving  holy  commun- 
ion— preceded  of  course  by  confession.'  " 

A  year  later,  Taney  wrote^^  to  his  cousin,  Ethelbert 
Taney,  who  was  a  farmer  living  near  Hancock,  Mary- 
land, to  thank  him  for  a  letter  of  sympathy  and  said: 

I  have  indeed  passed  through  most  painful  scenes,  and  have 
not  yet  gained  sufficient  composure  to  attend  to  business.     But 

2B  Tyler,  p.  474. 
2«  Tyler,  p.  477. 
27  October  22, 1855.    Tyler,  p.  473. 


ROGER   BROOKE  TANEY  51 

it  has  pleased  God  mercifully  to  support  me  through  this  visitation, 
and  to  recall  my  bewildered  thoughts  and  enable  me  to  feel  this 
chastisement  comes  from  him  and  that  it  is  my  duty  to  submit  to 
it  with  calmness  and  resignation.  And  I  do  not  doubt  that, 
severe  as  the  trial  is  to  those  who  survive  it,  it  is,  in  the  mysterious 
ways  of  Providence,  introduced  in  justice  and  mercy  to  the  living 

and  the  dead My  age  and  my  feeble  health  put  it 

out  of  my  power  to  accept  your  kind  invitation  to  visit  you. 
.  My  health  has  suffered  from  this  shock  and,  at  my 
time  of  life,  I  can  hardly  hope  that  it  will  be  much  better.  My 
great  duty  is  to  prepare  myself  for  that  change  which  soon  must 
come;  and  I  trust  that  I  shall  mercifully  be  enabled  to  do  so. 

Taney's  mother  left  her  home  during  the  War  of 
1812,  to  avoid  danger  from  British  incursions,  and  made 
her  home  with  her  son,  until  her  death  in  the  latter 
part  of  1814.28  f  j^g  War  of  1812  had  another  associa- 
tion with  Taney,  in  the  immortal  verses  written  by 
Francis  Scott  Key,  of  which  Taney's  account,  printed 
in  the  volume  of  collected  poems  by  his  brother-in- 
law,  gives  the  most  authentic  account. ^^ 

Taney's  father  outlived  his  mother,  and  about  1819,^^ 
in  a  quarrel,  stabbed  and  killed  a  neighbor,  John  Ma- 
gruder.  The  old  gentleman  was  indicted  for  manslaugh- 
ter, but  fled  to  Virginia,  where  he  lived  in  seclusion,  in 
Loudon  County  for  several  years,  until  he  was  killed 
by  a  fall  from  a  horse.  Two  faithful  slaves  had  accom- 
panied him  across  the  Potomac,  and  they  brought 
his  body  home  for  burial  in  the  family  graveyard.  The 
tradition  of  the  neighborhood  says  that  Magruder's 
brother   disinterred   the   remains,    and,    when   he   had 

28  Tyler,  p.  143. 

29  Reprinted  in  Tyler,  pp.  109-1 19.  Taney  wrote  that  he  felt  a  "melancholy 
pleasure  in  recalling  events  connected"  with  the  "life  of  one  with  whom  I  was 
so  long  and  so  closely  united  in  friendship  and  affection,  and  whom  I  so  much 
admired  for  his  brilliant  genius  and  loved  for  his  many  virtues." 

30 13  Md.  Hist.  Mag.  130. 


52  ROGER   BROOKE   TANEY 

Opened  the  coffin,  and  assured  himself  that  it  contained 
the  body  of  Michael  Taney,  in  his  fiendish  rage,  he 
battered  the  face  with  a  stone. 

In  the  life  of  the  little  town  of  Frederick,  Taney  took 
a  prominent  part.  In  1818,  he  was  named  as  one  of 
the  first  Board  of  Directors  of  the  newly  chartered 
Frederick  County  Bank,  and  he  rarely  missed  a  meet- 
ing, during  the  several  years  in  which  he  served  as 
Director.  On  October  30,  1802,  he  was  appointed  a 
visitor  of  the  Frederick  Academy,  and  continued  to 
serve  as  a  member  of  the  Board,  until  his  resignation 
on  February  1,  1822,  during  which  period  of  twenty 
years,  he  was  absent  from  only  one  or  two  meetings  of 
the  Visitors. ^^  During  his  term  as  Visitor,  his  successor 
as  Chief  Justice,  Salmon  P.  Chase,  then  a  young  New 
England  College  graduate,  applied  for  the  Principal- 
ship,  and  failing  to  obtain  the  desired  position,  went 
to  Ohio,  with  results  known  to  all. 

One  of  Taney's  intimate  friends  during  this  period, 
was  Virgil  Maxey  of  Anne  Arundel  County.  Two  of 
Taney's  letters  to  him  are  preserved  in  the  New  York 
Public  Library.  One  of  these  letters,  without  a  date, 
speaks  of  an  illness  from  which  the  writer  was  recover- 
ing and  of  a  hoped  for  visit  later.  In  the  other  letter, 
written  on  October  21,  1822,  Taney  speaks  of  the  great 
anxiety  felt  at  Frederick,  because  of  many  ill  people. 
Taney  was  better,  *'yet,  from  my  window,  I  can  see 
the  faded  leaves  falling  from  the  trees,  and  have  no 
reason  to  suppose  that  my  hold  of  life  is  much  firmer 
than    these.  "^2     Taney's    melancholy    prognostications 

31  Tyler,  p.  103. 

22  He  inquired  concerning  Mrs.  Maxey's  health,  transmitted  Mrs.  Taney's 
message  of  love  to  her  and  Mrs.  Galloway,  and  spoke  of  the  calamity  experi- 
enced through  the  recent  death  of  John  Eager  Howard,  who  "was  greatly 
esteemed  and  respected." 


ROGER   BROOKE  TANEY  53 

were  far  from  correct,  for  he  had  over  forty  years  of 
life  before  him. 

To  young  lawyers,  Taney  was  especially  helpful. ^^ 
William  Schley,  born  in  Frederick,  and  in  his  mature 
life,  a  prominent  lawyer  in  Baltimore,  in  his  remarks 
made  at  the  memorial  meeting  of  the  Bar,  after  Taney's 
death,  spoke  of  having  known  him  from  early  child- 
hood: "As  a  boy,  as  a  youth, ^^  and,  afterwards,  as  a 
student  of  law,  I  heard  him  very  often  in  cases  of  mag- 
nitude in  the  Court  of  Frederick,  and  his  arguments 
and  his  manner  made  a  deep  impression  upon  me. 
He  sought  no  aid  from  rules  of  rhetoric,  none  from  the 
supposed  graces  of  elocution.  I  do  not  remember  to 
have  heard  him  at  any  time,  make  a  single  quotation 
from  any  of  the  poets.  Yet  his  language  was  always 
chaste  and  classical,  and  his  eloquence  undoubtedly 
was  great — ;sometimes  persuasive  and  gentle,  some- 
times impetuous  and  overwhelming.  He  spoke,  when 
excited,  from  the  feelings  of  his  heart,  and,  as  his  heart 
was  right,  he  spoke  with  prodigious  effect.  And  yet, 
perhaps  above  all  other  attributes,  his  exalted  private 
character  gave  him  with  the  honest,  right  minded 
juries  of  Frederick  County,  an  extent  of  success  which 
even  his  great  abilities  as  an  advocate  would  not  have 
enabled  him  otherwise  to  secure.  He  had  acquired, 
and  he  ever  retained  it,  in  an  eminent  degree,  the  con- 
fidence and  respect  of  that  community.  The  people 
knew  that  he  was  sincere  and  honest;  they  knew  that 
he  was  a  composer  of  strifes  and  controversies,  when- 
ever the  opportunity  was  afforded,  and  that  he  never 
promoted  any;  and  they  also  knew  that,  whilst  he  was 
was  earnest,  strenuous,  and  indefatigable  in  his  efforts 

23  Vide  James  Dixon's  letter.    Tyler,  p.  251. 
84  Tyler,  p.  139. 


54  ROGER   BROOKE  TANEY 

to  secure  for  his  clients  their  full  rights,  yet  he  never 
sought  to  gain  from  the  other  party  any  unjust  advan- 
tage. He  was  an  open  and  fair  practitioner.  He  never 
entrapped  the  opposing  counsel  by  any  of  the  ma- 
noeuvres of  an  artful  attorney;  and  he  contemned, 
above  all  things,  the  low  tricks  of  the  pettifogger.  In 
taking  exception  to  the  adverse  rulings  of  the  Court, 
he  never  cloaked  a  point,  but  presented  it  fairly  and 
distinctly  for  the  adjudication  of  the  Court." 

'Pylgj-35  refers  to  several  incidents  illustrating  his 
characteristic  friendship  for  young  lawyers.  For  ex- 
ample, William  Ross  had  recently  become  admitted 
to  the  Frederick  Bar,  having  settled  in  the  town  in 
1805.  He  was  employed  in  an  ejectment  suit  in  which 
Taney  was  the  opposing  counsel.  The  case  stood 
next  in  trial  and  the  Court  asked  if  Ross  was  ready. 
He  answered  ''Yes,"  but  Taney  whispered  to  him 
"that  his  locations  were  all  wrong;  and  that,  if  he  went 
to  trial,  he  must  lose  his  case,  whether  the  right  were 
with  him,  or  not.  Thereupon  Mr.  Ross  had  his  case 
continued,"  and  he  never  forgot  this  courtesy.  So, 
when  Joseph  M.  Palmer  came  from  Connecticut  to 
practice  law  in  Frederick,  in  1817,  a  client  of  Taney's 
mentioned  to  him  his  case  and  reported  to  Taney  the 
opinion  the  "Yankee  lawyer"  expressed  as  to  it.  "Mr. 
Taney  saw  the  force  of  Mr.  Palmer's  view,  which  dif- 
fered from  the  one  he  held,  and,  at  once,  sent  for  Mr. 
Palmer  and  employed  him  in  the  case,  to  help  him  for- 
ward in  his  profession."  Again,  Mr.  William  Price, 
who  had  been  engaged  often  as  junior  counsel  to  Taney, 
thus  spoke  of  him:  "But  few  men  of  his  eminence  have 
ever  displayed  so  much  kindness  to  the  younger  members 
of  the  profession.     Often  have   I  left  his  rooms  after 

36  Tyler,  pp.  137-139. 


ROGER   BROOKE   TANEY  55 

midnight,  having  gone  through  the  authorities  and 
settled  the  points  to  be  made  at  the  trial,  and  always 
believed  that  I  was  a  better  lawyer  for  the  interview; 
for  he  never  kept  back  from  his  young  associate  a  single 
thought  that  occurred  to  his  mind  during  the  investi- 
gations. In  a  case  of  difficulty,  he  would  tarry  to 
explain  the  law  and  usually  made  it  so  plain  that  no 
man  could  well  fail  to  understand  it.  After  our  labors 
were  finished,  he  would  invite  me  to  remain  and  to 
talk  with  him,  for,  although  his  dignity  was  a  part  of 
his  nature,  yet  he  was  one  of  the  most  genial  persons 
I  ever  knew." 

It  is  not  known  where  Taney  resided  when  he  first 
came  to  Frederick.  His  name  first  appears  on  the 
County  Land  Records  in  1813,  in  connection  with  those 
of  Arthur  Shaaff  and  Francis  Scott  Key,  as  one  of  the 
trustees,  under  the  will  of  General  James  Lingan  of 
Montgomery  County,  a  Revolutionary  veteran,  and 
an  ardent  Federalist,  who  was  murdered  in  the  Balti- 
more Riots  of  1812.3^  For  most  of  the  Frederick  por- 
tion of  Taney's  life,  he  and  his  family  occupied  a  small 
frame  house  still  standing  on  Bentz  street,  at  the  south- 
western edge  of  the  town.  This  property,  a  modest 
home,  for  a  successful  lawyer,  he  bought  for  $3200,  in 
June  1813,  and  sold  it  for  $1500,  when  he  left  Frederick." 

Mr.  Justice  Wayne,  in  his  eulogy  of  Taney,^^  said 
that  he  freed  his  inherited  slaves,  ''aided  them  in  their 
employments,  and  took  care  of  them,  when  they  were 
in  want.  He  often  said  that  they  were  grateful  and 
they  had  never  caused  him  a  moment's  regret  for  what 
he  had  done." 

36 13  Md.  Hist.  Mag.,  p.  130. 

3^  A  lot  on  Church  Street  was  the  only  other  land  he  owned  in  Frederick, 
while  living  there,  13  Md.  Hist.  Mag.,  p.  130. 
38  2WaUaceX. 


56  ROGER   BROOKE  TANEY 

On  November  29,  1817,  a  free  negro  bound  himself 
as  a  slave  to  Taney  and  to  Frederick  A.  Schley,  who 
was  reading  law  in  Taney's  office,  "upon  the  considera- 
tion that  they  would  shelter  and  feed  him,  with  the 
provision  that,  if  the  negro  paid"  a  note  to  Wood- 
ward Evitt  for  $350,  for  which  note  Taney  and  Schley 
were  securities,  the  indenture  should  be  void.  On 
the  same  day,  Evitt  sold  Taney  and  Schley  the  negro's 
wife  for  $350,  and  they  later  manumitted  her.  It  is 
an  interesting  transaction,  showing  Taney's  desire  to 
keep  man  and  wife  together,  and  to  help  a  man  buy  his 
wife's  liberty. ^^  In  1805,  Taney  was  taxed  as  owner 
of  a  female  slave — probably  his  cook — and  two  others 
(doubtless  her  children)  under  the  age  of  fourteen 
years.  In  1818,  he  set  seven  negroes  free,  and,  subse- 
quently, together  with  his  brother,  Octavius  Taney, 
he  liberated  two  slaves,  who  had  been  owned  by  his 
father.  Still  later,  in  1821,  he  manumitted  another 
slave. 

Taney  did  not  leave  his  love  for  politics,  nor  his 
devotion  to  Federalism  behind  him,  when  he  removed 
to  Frederick  County.  In  1803,^°  he  became  a  can- 
didate, together  with  John  Hanson  Thomas  and  two 
others,  on  the  Federalist  ticket  for  the  House  of  Dele- 
gates. The  election  was  the  first  one  in  Maryland  at 
which  ballots  were  used,  and  was  also  the  first  one  after 
the  abolition  of  the  property  qualification  for  the  suf- 
frage, and  the  disfranchisement  of  the  few  negroes  who 
had  voted  by  virtue  of  their  ownership  of  property, 
since,  by  a  Constitutional  Amendment,  race  had  been 
substituted  for  property  as  the  qualification  for  suffrage. 
Only  the  Sheriff,  members  of  the  House  of  Delegates, 

29 13  Md.  Hist.  Mag.,  p.  131. 

40  Tyler,  p.  100;  13  Md.  Hist.  Mag.,  p.  123. 


ROGER   BROOKE   TANEY  57 

and  Electors  for  the  State  Senate  were  voted  for  at 
that  time.  Frederick  County  had  a  Jeffersonian  Re- 
publican majority  of  voters,  and  Taney  was  defeated, 
but  he  canvassed  the  county  vigorously,  and  his  speeches 
made  a  deep  impression.  The  campaign  was  one  of 
barbecues.  Taney  and  another  Federalist  candidate — 
nicknamed  as  "Little  Sancho" — were  permitted  to 
engage  in  joint  debate  at  the  Republican  barbecue  in 
Middletown,  at  which  600  people  partook  of  meat, 
bread,  and  whiskey,  and  at  the  one  at  Westminster, 
where  1000  people  (including  100  women),  were 
present.  Taney  marched  into  Frederick  at  the  head  of 
a  cavalcade  from  a  Federalist  barbecue.  The  campaign 
degenerated  into  an  appeal  to  prejudice  against  the 
Federalist  "aristocrats,"  on  the  part  of  the  Republican 
"plain  people."  The  "Republicans'  Advocate"  attacked 
Taney  as  having  been  "fairly  laughed  out  of  Calvert 
County  as  an  aristocrat,"  and  alleged  that  he  "ranted 
and  was  incoherent"  in  his  speeches."  Mr.  Taney, 
it  said,  "owes  it  to  the  people  of  this  county  to  give 
some  account  of  himself,  before  he  goes  spouting — be- 
fore he  accuses  others,  let  him  tell  the  people  who  he 
is.  What  do  the  people  of  Frederick  County  know  of 
Roger  B.  Taney?  Why  does  he  not  tell  the  people 
how  Dr.  Kent  saved  him?"^i  The  Republicans  also 
attacked  Charles  Carroll  of  Carrollton,  "that  hoary 
headed  aristocrat,"  who  had  "gone  down  to  the  Manor, 
no  doubt  with  a  view  to  influence  the  tenants  on  the 
place.  Shall  the  people  be  dictated  to  by  this  lordly 
nabob,  because  he  has  more  pelf  than  some  others?  "^2 
In  1808,  together  with  David  Lynn  of  Allegany 
County,   Taney   became   a   candidate   for   Presidential 

*^  I  cannot  explain  this  allusion. 

^  The  total  vote  cast  was  4,841,  and  Taney  polled  2,120. 


58  ROGER   BROOKE   TANEY 

Elector  from  the  Western  Maryland  district,  for  the 
State  did  not  then  choose  electors  on  a  general  ticket. 
They  were  defeated  by  Dr.  John  Tyler  of  Frederick,  and 
Nathaniel  Rochester  (the  founder  of  the  New  York 
City  named  for  him)  of  Hagerstown,  but  the  Republi- 
can majority  in  Frederick  County  was  reduced  to  30. "^^ 
The  Federalist  candidates  for  the  House  of  Delegates, 
including  John  Hanson  Thomas,  carried  the  County.^"^ 

The  War  of  1812  led  to  a  split  in  the  Federal  party  in 
Frederick  County,  and  to  a  break  in  the  friendship  of 
Taney  with  John  Hanson  Thomas.  The  broken  friend- 
ship was  not  renewed,  until  Thomas  lay  on  his  death- 
bed and,  as  he  and  his  family  had  been  of  essential 
service  to  Taney  on  his  first  settlement  in  Frederick, 
the  charge  of  ingratitude  was  long  urged  against  him.^^ 
Taney  gave  his  support  to  the  national  government, 
as  soon  as  war  was  declared,  and  many  other  Federal- 
ists in  Frederick  County  did  the  same.  For  some 
reason,  these  men  were  nicknamed  Goodies,  and  Taney, 
because  of  his  influence  over  them,  was  called  King 
Coody.  Thomas  led  the  wing  of  the  party  which  re- 
fused to  support  President  Madison.  While  the  divi- 
sion in  the  party  was  at  its  height, '^^  Taney  was  nomi- 
nated by  his  friends  for  a  seat  in  the  House  of  Repre- 
sentatives, and,  notwithstanding  the  great  strength  of 
the  Republican  party  in  the  district,  was  defeated  in 
the  Congressional  election  by  only  300  majority. 

In  May  1815,  John  Hanson  Thomas  died.^^  Shortly 
before  his  death,  ''memories  of  their  early  friendship 
and  the  great  qualities  of  Mr.  Taney,  came  before  his 

«The  figures  were  2,471  and  2,341. 

4^  13  Md.  Hist.  Mag.,  p.  125. 

«  13  Md.  Hist.  Mag.,  p.  126;  Tyler,  p.  106. 

«5  Tyler,  p.  119. 

4"  Tyler,  p.  107. 


ROGER   BROOKE   TANEY  59 

magnanimous  soul,"  and  he  sent  for  Taney,  "who 
hastened  to  the  bedside  of  his  rival,  and  gave  him  a 
greeting,  so  generous  and  so  tender,  that  their  recon- 
ciliation was  consecrated  by  mutual  tears." 

In  the  next  year,  1816,  Taney  was  chosen  an  Elector 
for  the  Senate  of  Maryland  from  Frederick  County. 
Each  of  the  nineteen  counties  chose  two  members  of 
this  college,  and  the  cities  of  Baltimore  and  Annapolis 
each  chose  one.  The  forty  members  of  the  College 
selected,  from  their  own  number  or  not,  as  they  pleased, 
15  Senators  to  serve  for  five  years. 

The  Electoral  College  convened  on  September  6, 
chose  Taney  as  chairman  of  its  committee  on  creden- 
tials,^^  and,  subsequently,  elected  him  as  Senator,  by  a 
vote  of  28  to  12.  Though  he  preferred  professional 
life,  he  yielded  to  the  desire  of  his  friends,  and,  in  after 
life,  "always  talked  of  his  service  in"  the  Senate  "with 
singular  pleasure."  The  Senate's  session  began  on 
December  4,  and,  two  days  later,  Taney  appeared  at 
its  meetings.  He  was  one  of  the  tellers  of  the  vote  for 
Governor's  council,  and  for  the  United  States  Senator, 
and,  on  January  2,  after  the  Christmas  recess, 
reported  resolves  condemning  Congressional  Presidential 
Caucuses.^^ 

"  Tyler,  p.  120.  Vide  Van  Santvoord's  "Lives  of  the  Chief  Justices,"  p.  539. 
Van  Santvoord  speaks  of  Taney's  "habitual  reluctance  to  speak  of  himself  or 
of  his  acts,"  and  of  his  looking  back  on  his  service  "in  the  Senate  with  more 
satisfaction  and  pleasure  than  to  any  other"  one. 

*^  On  January  18  he  served  on  a  committee  upon  a  hospital  and  on  January 
29  voted  to  remove  Judge  Zebulon  Hollingsworth  for  intemperate  habits  and 
failure  to  give  attendance  on  the  Bench.  He  was  excused  from  voting  on  Jan- 
uary 31  on  an  act  for  quieting  possessions,  and  enrolling  conveyances,  on  the 
ground  that  he  had  been  consulted  as  to  the  law  before  his  election.  He  offered 
resolves  against  altering  roads  without  notice,  and  voted  for  popular  election 
of  Senators,  for  the  suppression  of  duelling,  and  for  the  incorporation  of  the 
Potomac  Company.    He  opposed  charters  for  the  Specie  Bank  of  Leonardtown, 


60  ROGER   BROOKE   TANEY 

On  December  5,  1817,  Taney  introduced  a  bill  to 
regulate  clerk's  fees  in  chancery  proceedings,  and  also 
one  to  prevent  the  circulation  of  bank  notes  of  a  value 
less  than  a  dollar.  In  the  latter  measure,  appeared  the 
same  love  for  hard  money  which  he  showed  later  in 
national  affairs. ^"^ 

The  session  of  December  1818,^^  saw  Taney  chairman 
of  Committees  which  introduced  bills  to  prevent  the 
passage  of  bank  notes  below  their  nominal  value,  to 
regulate  the  manner  of  obtaining  and  altering  roads, 
to  regulate  the  admission  of  attorneys,  and  to  relieve 
Phoebe  Cresap.^^ 

He  did  not  come  to  the  session  of  December,  1819, 
until  January   17,    1820.^^     Tw^o  days  later,   he  voted 

the  Dorchester  Bank,  and  the  Warren  Manufacturing  Company,  as  well  as  a 
constitutional  amendment  as  to  the  attorney  generalship.  He  was  excused 
from  voting  on  the  bill  to  incorporate  the  Moravian  Church  at  Graceham  in 
Frederick  County  and  on  the  proposal  to  pay  money  to  the  widow  of  J.  H. 
Stone. 

5°  He  was  chairman  of  a  committee  upon  such  a  bill  on  January  30,  1821. 

^^  On  January  22  he  voted  for  bills  to  grant  charters  to  the  Bank  of  Dor- 
chester and  the  Frederick  County  Bank,  and  to  regulate  the  manner  of  opening 
and  altering  roads,  and  he  introduced  a  bill  to  have  the  Western  Boundary  of 
the  State  settled.  He  voted  for  a  constitutional  amendment  as  to  the  election 
of  Governor  on  January  26,  for  a  bill  to  incorporate  the  Grand  Lodge  of  Masons 
on  February  2,  and  for  another  bill  to  regulate  lotteries  for  a  hospital  on  Feb- 
ruary 10  and  16;  but  he  opposed  the  incorporation  of  the  turnpike  in  Mont- 
gomery, Frederick  and  Washington  Counties,  and  of  an  academy  at  Liberty- 
town,  as  well  as  the  establishment  of  a  Branch  Loan  office  for  the  Eastern 
Shore  on  February  11.  He  voted  against  an  insolvency  bill  and  one  concerning 
attachments.  He  served  as  Chairman  of  a  conference  committee  upon  a  State 
loan,  and  reported  a  bill  to  incorporate  the  Washington  and  Baltimore  Coal 
Company. 

^2  January  14. 

^3  He  introduced  a  bill  to  incorporate  an  academy  at  Libertytown  in  Fred- 
erick County,  and  took  an  active  part  in  the  debate  on  a  bill  to  regulate  the 
incorporation  of  banks.  On  February  6,  he  voted  against  incorporating  a 
bank  at  Oldtown.  He  favored  the  bill  for  the  Maryland  Hospital,  and  for 
the  benefit  of  the  Baltimore  Roman  Catholic  Congregation.    He  voted  for 


ROGER   BROOKE   TANEY  61 

against  a  resolution  stating  that  the  powers  of  Con- 
gress are  derived  immediately  from  the  people,  and  not 
the  States  in  their  corporate  capacity,  therefore,  that 
the  members  of  Congress  from  Maryland  should  not 
be  instructed  by  the  Maryland  legislature  upon  the 
proposed  Missouri  compromise.  He  also  voted  against 
a  resolution,  stating  that  the  members  of  Congress 
should  use  their  utmost  endeavor  to  prevent  the  pro- 
hibition of  slavery  from  being  required  of  Missouri  as 
a  condition  of  admission.  It  is  curious  that  Taney, 
who  decreed  the  Missouri  Compromise  to  be  unconsti- 
tutional, should  have  voted  on  certain  features  of  the 
measure,  while  it  was  pending,  and  it  is  also  interesting 
that  these  votes  were  reported  to  Henry  Clay  and  that 
the  knowledge  was  used  by  him  in  an  attack  upon 
Taney  in  the  United  States  Senate. 

His  last  session  was  that  of  December,  1820.^"^  He 
then  showed  his  interest  in  insolvent  imprisoned  debt- 
ors, for  such  imprisonment  had  not  as  yet  been  abolished 
in  Maryland.  He  was  absent  much  of  the  time  during 
this  session. ^^  When  present,  he  voted  not  to  repeal 
the  law  prohibiting  the  importation  of  slaves  into  the 

the  Surgical  Institute  Lottery  on  February  18,  He  served  on  the  joint  com- 
mittee to  examine  records  in  the  land  ofSce,  and  voted,  on  February  6,  for  a 
bill  to  alter  the  method  of  electing  the  Senate,  but  against  a  bill  amending  the 
act  to  direct  descents,  against  incorporating  a  company  for  a  bridge  over  the 
Nanticoke  River,  against  an  Annapolis  street  bill,  and  against  an  act  relating 
to  negroes. 

®^  He  voted  against  incorporating  the  Lodge  of  Masons  in  Salisbury  on  Jan- 
uary 28,  against  a  resolve  for  a  medical  college,  and  against  amendments  to 
the  testamentary  law.  He  was  interested  in  the  attempt  which  Maryland  was 
vainly  making  to  secure  a  portion  of  the  National  public  lands  for  educational 
purposes.  On  January  30,  1821,  he  again  showed  interest  in  that  subject. 
He  was  also  interested  in  a  bill  concerning  executions,  favored  the  prohibition 
of  cockfighting  and  gaming,  and  the  grant  of  a  lottery  for  the  University  of 
Maryland.     (So  again  on  February  18,  1821.) 

^5  He  arrived  on  December  11. 


62  ROGER   BROOKE   TANEY 

State.  Bills^^  met  his  favor  concerning  habitual  drunk- 
ards" and  to  discourage  drunkenness  by  preventing  the 
recovery  of  small  debts  contracted  to  pay  for  ardent 
spirits. 

This  term  of  service  ended  Taney's  legislative  career. 
His  Senatorial  achievement  was  creditable,  but  not 
distinguished,  nor  did  it  fulfil  the  promise  of  his  term 
as  Delegate.  One  can  hardly  help  feeling  that  his 
mind  was  not  greatly  occupied  w^ith  legislative  matters, 
but  was  probably  largely  occupied  by  legal  ones. 

We  have  left  the  discussion  of  Taney's  legal  career, 
while  practising  at  the  Frederick  bar,  until  the  end  of 
this  chapter;  although,  in  truth,  such  affairs  appear  to 
have  taken  his  best  energies  and  most  of  his  time.  John 
Thompson  Mason  and  Arthur  Shaaff  had  been  the 
leaders  of  the  Frederick  Bar,  and  of  these  Mason  had 
recently  retired  from  active  practice,  and  settled  in 
Washington  County,  while  Shaaff,  though  continuing 
to  practice  before  the  Frederick  Court,  had  removed 
to  Annapolis.  He  gave  efficient  aid  to  Taney  in  the 
early  years  of  his  Frederick  residence.  The  latter's 
friendships  with  Key  and  Thomas  were  also  of  great 
value  to  him.  The  Fredericktown  Herald  for  March 
10,  1804,  shows  these  four  men,  all  Federalists,  offering 
their  legal  services  to  a  man  who  was  prosecuted  by 
Samuel  Hughes,  in  a  case  in  which  Roger  Nelson,  the 
Democratic  leader,  was  supposed  to  have  been  behind 
Hughes. 

Taney's  practice  "literally  grew  by  leaps  and 
bounds.  "^8  At  the  February  term  of  1802,  he  appeared 
in  five  or  six  suits  in  the  Frederick  County  Court;  at 

^^  He  presented  reports  of  Academies,  Banks,  etc. 

"  Jan. 30. 

58 13  Md.  Hist.  Mag.,  p.  119. 


ROGER   BROOKE  TANEY  63 

the  following  term  in  August,  in  about  two  dozen;  and 
at  the  February  term  of  1803,  in  between  thirty  and 
forty  cases.  From  that  time,  and  until  his  removal 
from  Frederick,  he  appeared  in  a  majority  of  cases, 
heard  in  that  Court.  His  practice,  however,  was  not 
confined  to  the  County  of  his  residence.  As  early  as 
1801,  he  was  retained  in  two  lawsuits  in  Hagerstown, 
the  county  seat  of  Washington  County,  which  adjoined 
Frederick  on  the  west.^^  Either  of  the  suits  involved 
an  amount  exceeding  £277  Maryland  currency,  in 
which  £1  was  equal  to  $2.66|.  These  cases  were 
brought  up  for  trial  at  the  August  term  of  1803,  and, 
though  Taney  lost  both  of  them,  he  won  two  other 
suits  at  the  same  term,  in  which  he  appeared  as  coun- 
sel. From  that  time,  until  his  removal  to  Baltimore, 
Taney  frequently  journeyed  over  the  Catoctin,  or 
South  Mountain,  to  participate  in  litigation  at  Hagers- 
town, and  he  took  part  in  a  dozen  or  more  causes  at 
every  term  of  the  Washington  County  Court. 

Before  Taney  w^as  thirty  years  of  age,  he  had  appeared 
several  times  in  the  Court  of  Appeals,  the  highest  tri- 
bunal of  the  State.  His  first  appearance  there  was  due 
to  Mr.  Shaaff,  as  his  first  appearance  in  the  Frederick 
Court  had  been;  for,  at  the  October  term  of  1805,  after 
he  had  been  practicing  for  four  years  in  Frederick,  he 
assisted  Messrs.  Shaaff  and  Robert  Goodloe  Harper  in 
the  argument  of  an  important  action  of  ejectment, 
instituted  in  1801  by  Luther  Martin,  Attorney  General 
of  the  State,  who  was  supported  by  Mr.  Dorsey  and 
Philip  Barton  Key.  The  suit  involved  the  rights  of 
the  State,  succeeding  to  those  of  the  Lord  Proprietary, 
and  obtained  by  him  from  the  Royal  Charter.  The 
case  was  reargued  during  the  June  term  of  1806,  and 

"  13  Md  Hist.  Mag.,  p.  120. 


64  ROGER   BROOKE   TANEY 

was  decided  against  Shaaff  and  Taney;  but  the  defeat 
was  one  suffered  against  a  brilliant  array  of  lawyers; 
for,  besides  those  who  had  argued  with  Martin  in  the 
preceding  year,  John  Thompson  Mason,  who  had  been 
appointed  Martin's  successor  in  July,  1806,  and  John 
Johnson,  who  succeeded  Mason  in  the  following  Octo- 
ber, were  added. ^^ 

At  the  1806  term  of  the  Court  of  Appeals,  Taney 
appeared  in  another  case,  in  which  he  was  asociated 
with  Francis  Scott  Key.  The  case  involved  a  question 
of  dower,  in  which  Taney's  client  had  succeeded  in  the 
Frederick  County  Court;  but  Shaaff  and  Brooks,  who 
had  instituted  the  suit  in  behalf  of  a  widow,  secured  a 
reversal  by  the  Court  of  Appeals  of  the  result  in  the 
Court  below\^^ 

In  1807,  he  did  not  appear  before  this  Court,  but, 
in  1808,  his  name  appears  as  counsel  in  four  cases.  In 
one  of  these,  he  assisted  Shaaff — a  case  coming  from  the 
Court  of  Chancery,  and  involving  a  bill  for  reconvey- 
ance of  land  filed  in  1801,  by  John  Johnson,  Thomas 
Buchanan,  and  Luther  Martin.  The  judgment  in 
the  Court  of  Chancery  had  been  for  the  complainant, 
and,  on  the  appeal,  he  was  also  successful,  although 
Shaaff  and  Taney  were  joined  by  Ridgely  and  Philip 
Barton  Key  for  the  appellant. ^^ 

The  other  three  cases  were  not  of  great  importance, 
and  it  is  interesting  to  observe  that,  in  all  of  them, 
Taney  and  Shaaff  were  opposing  counsel. 

In  one  of  these  suits,  Taney  and  Key  were  associated 
in  an  action  for  slander  in  which  they  represented 
the  defendant. *^2      In   this  case,    they   were  fortunate, 

80 13  Md.  Hist  Mag.,  p.  120.     Howard  v.  Moale,  2  H.  &  J.  218. 
®^  No  briefs  were  filled.    Keefer  v.  Young,  2  H.  &  J.  45. 
62  Bogden  v.  Walker,  2  H.  &  J.  248.     13  Md.  Hist.  Mag.,  p.  121. 
«  Sheely  v.  Briggs,  2  H.  &  J.  311,  363. 


ROGER   BROOKE  TANEY  65 

and  succeeded  in  obtaining  a  reversal  of  a  judgment 
secured  in  the  Frederick  County  Court,  for  £  22  against 
their  client. 

In  the  other  two  cases,  Taney  and  Shaaff  faced 
each  other  without  associates.  As  Delaplaine  writes: 
*' Taney  is  no  longer  Mr.  Shaaff 's  apprentice."^*  One 
of  these  suits  was  an  appeal  from  the  Frederick  County 
Orphans'  Court,  which  had  admitted  to  probate  a 
paper,  designed  to  take  effect  as  a  will  upon  the  hap- 
pening of  a  certain  contingency.  Taney  cited  authori- 
ties to  prove  that  the  paper  was  void,  since  the  contin- 
gency did  not  occur,  and  won  the  suit.^^  The  other 
action  was  one  of  assumpsit,  instituted  by  Taney  at 
Frederick,^^  to  recover  against  an  estate  for  a  year's 
service  rendered  as  overseer  in  1791,  in  which  attempt 
Taney  was  successful. 

Taney's  first  criminal  case  before  the  Court  of  Appeals, 
was  one  in  which  he  defended  a  negro,  Thomas  Burk, 
charged  with  committing  rape  upon  a  white  girl,  Cath- 
erine Maria  Brawner,  under  twelve  years  of  age.  The 
Grand  Jury  of  Frederick  County  found  an  indictment 
in  the  case,  in  February,  1809,"  but  the  case  was  removed 
to  Hagerstown,  where  the  negro  was  found  guilty,  and 
sentenced  to  be  hanged.  Taney  and  his  associates, 
Messrs.  Lawrence  and  Martin,  moved  for  an  arrest  of 
judgment,  and,  when  this  was  refused  them,  brought 
the  proceedings  before  the  Court  of  Appeals  by  writ  of 
error.  The  counsel  for  the  defence  had  made  a  care- 
ful study  of  the  case  and  nearly  one  hundred  of  their 
authorities — a  remarkably  large  number  for  so  early  a 

«  13  Md.  Hist.  Mag.,  p.  123. 
•»  Wagner  v.  McDonald,  2  H.  &  J.  346. 
^  Cushman  v.  Sims,  2  H.  &  J.  352. 

"2  Scharf's  Western  Md.  1108.  13  Md.  Hist.  Mag.,  p.  132.  Burk  v. 
State,  2  H.  &  J.  426. 


66  ROGER  BROOKE  TANEY 

case — are  cited  in  the  Reports.  The  Court  decided  in 
favor  of  the  State,  but  the  negro  escaped  hanging  by 
escaping  from  the  Washington  County  jail,  on  July  4, 
1809. 

Taney's  other  appearance  in  Annapolis  in  1809  was 
with  Shaaff,  in  an  action  for  dower,  which  they  lost, 
Luther  Martin  being  the  opposing  counsel. 

In  1810,  Taney's  only  appearance  before  the  Court 
of  Appeals,  was  in  an  action  for  slander.^^  The  suit 
had  been  filed  by  Philip  Barton  Key  in  the  County 
Court  at  Rockville,  Montgomery  County,  adjacent 
to  Frederick,  and  Taney,  endeavoring  to  escape  the 
trouble  of  drawing  up  the  pleadings,  merely  filed  a 
plea  of  justification  short,  under  an  agreement  with 
Key  that  the  plaintiff  would  consent  to  waive  his  rights 
in  the  matter  of  formal  pleading.  A  verdict  for  the 
defendant,  Taney's  client,  was  given  in  the  nisi  prius 
court;  but,  on  appeal.  Chief  Justice  Jeremiah  Townley 
Chase,  Taney's  former  preceptor,  rendered  an  opinion 
reversing  the  verdict,  briefly  stating  that  "the  plea  of 
justification  is  not  sufficiently  pleaded,  being  put  in 
short,  and  upon  that  ground  the  Court  reverse  the 
judgment."  It  is  almost  the  only  censure  recorded 
upon  Taney's  diligence. 

Four  cases  were  argued  before  the  Court  of  Appeals 
by  Taney  in  1811,  arising  in  four  different  counties,  a 
fact  which  shows  how  his  practice  was  spreading.  He 
lost  three  of  them;  an  attachment  case  from  his  native 
County,  Calvert  ;^^  a  suit  brought  on  an  assumpsit 
in  Washington  County, ^^  and  an  action  for  debt  arising 

«8 13  Md.  Hist.  Mag.,  p.  118.    Orme  v.  Lodge,  3  H.  &  J.  83. 

^^Fitzhugh  V.  Hellen.  He  and  Dorsey  opposed  Thomas  Buchanan  and 
Magruder,  3  H.  &  J.  206. 

70 13  Md.  Hist.  Mag.,  p.  129.  The  facts  in  the  Washington  County  Case 
were  these:    Samuel  Ringgold  had  made  a  promissory  note  for  $2,500  in  1801, 


ROGER   BROOKE  TANEY  67 

in  Frederick  from  a  lottery  drawing.  ^^  His  success 
came  in  an  action  for  assumpsit,  brought  in  Montgom- 
ery County.  ^2 

In  1811,  Taney  did  not  appear  in  the  Court  of  Ap- 
peals, ^^  but,  in  that  year,  he  was  retained,  together 
with  John  Hanson  Thomas,  to  defend  General  James 
Wilkinson  in  a  court  martial  held  in  Frederick.  ^^  Wil- 
kinson, who  had  been  Commander-in-Chief  of  the 
United  States  Army,  was  accused  of  having  been  an 
accomplice  of  Burr,  in  his  western  conspiracy.  He 
was  a  native  of  Calvert  County,  like  Taney,  having 
been  born  there  in  1757.  He  too  had  settled  in  Freder- 
ick County,  practicing  medicine  along  the  Potomac, 
and  residing  between  Point  of  Rocks  and  the  mouth  of 
the  Monocacy  River.  He  had  served  in  the  Revolu- 
tionary War,  with  credit,  but  was  rightly  regarded  as 
an  unreliable  and  untrustworthy  man.  Both  Thomas 
and  Taney  had  shared  in  the  general  belief  that  Wil- 
kinson had  been  treacherous  both  to  the  country,  and 

and  the  note  had  been  subsequently  endorsed.  The  endorsee  instituted  an 
action  of  assumpsit,  and  obtained  a  verdict  in  Hagerstown.  Ringgold's  counsel 
moved  on  arrest  of  judgment,  on  the  ground  that  the  note  did  not  contain  the 
words  or  order,  or  to  bearer,  and  was,  therefore,  not  a  negotiable  instrument, 
hence  the  endorsee  could  not  sue  in  his  own  name.  The  Court  of  Appeals  held 
that  the  defendant's  contention  was  correct,  and  Taney  lost  the  case,  which 
is  one  of  his  earliest  in  commercial  law  and  banking,  a  class  of  cases  in  which 
he  always  took  a  great  interest.  Noland  v.  Ringgold,  3  H.  &  J.  216.  He  was 
associated  with  W.  Dorsey  and  opposed  by  Thomas  Buchanan. 

^^  State  V.  Wolfe,  3  H.  &  J.  224.  Taney  was  associated  with  Brooke,  and 
opposed  by  Warfield. 

^2  Lodge  V.  Boone,  3  H.  &  J.  218.    Francis  Scott  Key  opposed  him. 

■'3  The  New  York  Public  Library  possesses  a  letter  from  him,  dated  May  15, 
1811,  concerning  the  preparation  of  a  deed,  for  Ignatius  Davis. 

7*  Wilkinson,  with  characteristic  neglect,  treats  of  this  trial  at  considerable 
length  in  volume  2  of  his  Memoirs,  but  does  not  name  his  counsel.  Vide  13 
Md.  Hist.  Mag.,  p.  134,  and  Tyler,  p.  104,  which  treat  of  Taney's  part  in  the 
trial. 


68  ROGER   BROOKE  TANEY 

later  to  Burr;  but,  after  studying  the  evidence  care- 
fully, they  concluded  that  they  had  done  Wilkinson  an 
injustice,  so  that,  for  nearly  four  months,  they  labored 
assiduously  in  his  defence,  and  refused  to  accept  any 
fee  for  their  professional  services.  Walter  Jones,  an 
able  and  subtle  lawyer,  who  had  a  large  practice  before 
the  United  States  Supreme  Court,  acted  as  Judge  Ad- 
vocate, and  the  Court,  composed  of  thirteen  high  mili- 
tary officers,  sat  in  Frederick,  from  early  in  September, 
1811,  until  Christmas  Day,  when  it  adjourned  with  a 
verdict  of  acquittal.  The  result  was  a  considerable 
triumph  for  Thomas  and  Taney.  Madison,  in  his 
order  concerning  the  decision,  wrote: 

Although  I  have  observed  in  those  proceedings,  with  regret, 
that  there  are  instances  in  the  conduct  of  the  Court,  as  well  as 
of  the  officer  on  trial,  evidently  and  justly  objectionable,  his 
acquittal  of  the  several  charges  against  him  is  approved,  and  his 
sword  is  accordingly  ordered  to  be  restored.'^ 

In  1813,  Taney  had  two  unimportant  cases  before  the 
Court  of  Appeals,  which  he  won,  and  an  important 
one,  which  he  lost.  The  two  former  were  concerned 
with  opening  a  road,^^  and  trespass  in  carrying  away 
fence  rails. ^^  The  latter  was  an  action  of  ejectment, 
an  appeal  from  the  Washington  County  Court,  dealing 
with  the  land  of  Jonathan  Hager,  the  founder  of  Hagers- 
town.^^  A  remarkable  array  of  counsel  appeared  in 
this  case:  Luther  Martin,  William  Pinkney,  then  Attor- 

'^  4  So.  Lit.  Mess,  348.  An  anon5mious  writer  in  1838  stated  that  Wilkin- 
son was  particularly  unpopular  in  Frederick,  where  he  had  successfully  prose- 
cuted an  old  and  poor  Revolutionary  veteran. 

'*  Greenwood  v.  Stone.    3  H.  &  J.  435. 

''  Gibson  v.  Kephart,  3  H.  &  J.  439.    Brooke  against  Taney. 

'8  Lawrence  v.  Heister,  3  H.  &  J.  371. 


ROGER   BROOKE  TANEY  69 

ney  General  of  the  United  States,  and  Mason,  opposing 
Key,  Shaaff,  and  Taney.  ^^ 

Tyler  informs  us  that  it  was  Taney's  "habit  to  ad- 
vise his  clients  to  settle  their  disputes  amicably,"  in  all 
cases  where  he  thought  "this  settlement  could  be  ac- 
complished." In  1813,  a  dispute  between  two  former 
business  partners  in  Frederick,  led  to  acrimonious  news- 
paper controversy.^^  The  matter  was  referred  by 
both  parties  to  Taney  as  their  counsel,  and  he  arranged 
the  difficulty  amicably,  closing  the  controversy  by  a 
written  opinion,  in  which  he  stated : 

There  is  nothing  in  the  settlement  that  can  impeach  the  integ- 
rity, or  impair  the  reputation  of  either  of  you.  My  opinion  was 
not  given,  on  the  ground  that  one  has  right,  and  the  other  has 

'^  Tyler,  p.  122,  gives  an  account  of  another  ejectment  case  at  Hagerstown, 
in  which  Martin  and  Taney,  then  "a  comparatively  young  man,"  were  opposed 
to  Shaaff.  Martin  had  been  very  skilful,  in  the  use  of  "the  most  subtle  prin- 
ciples and  the  most  complex  forms  of  pleading  in  actions  of  ejectment."  Taney 
had  to  study  this  case  and  prepare  it  for  trial,  without  Martin's  aid,  but  they 
finally  started  together  for  Hagerstown  by  stage  coach,  on  the  day  before  the 
trial.  The  distance  is  26  miles,  and  every  five  miles,  when  horses  were  changed, 
"Martin  drank  at  the  tavern — whiskey,  when  he  could  get  it,  and,  when  he 
could  not,  he  drank  ale,  and,  when  he  could  get  neither,  he  drank  buttermilk." 
On  arriving  at  Hagerstown,  they  took  supper  together,  and  Taney  told  Martin 
that,  after  smoking  a  cigar  and  resting,  "he  would  come  to  his  room,  and  go 
over  the  case  with  him."  At  eleven  o'clock,  he  found  Martin  in  his  room  lying 
across  the  bed  with  his  hat  on,  and  dressed  in  all  his  clothes,  except  one  boot, 
*'asleep  from  his  various  potations."  He  called  Martin  in  vain,  and  then, 
**much  disturbed,  but  not  daunted,  he  retired  to  his  room,  and  studied  the  case 
until  nearly  day,"  to  be  ready  to  meet  Shaaff's  technicalities.  In  the  morn- 
ing, Taney  called  at  Martin's  room,  but  found  the  door  locked  and  went  to  Court 
alone,  fearing  that  Martin  would  not  be  in  Court.  Just  as  the  case  was  called, 
Martin  came  in,  and  Taney  told  Tyler  that,  "in  none  of  his  forensic  efforts,  did 
he  excel  his  skill  in  the  management  of  this  cause."  Both  he  and  Mr.  Shaaff 
"showed  the  most  extraordinary  ingenuity,  respectively,  in  bringing  before  the 
jury  and  in  refuting  evidences  of  the  changes  that  the  location  of  a  spring  of 
water  might  have  undergone,  which  spring's  situation  would  determine  the 
disputed  boundary." 

80  George  Graff  and  Richard  Lee  Head.    Tyler,  p.  136. 


70  ROGER   BROOKE   TANEY 

wrong,  on  his  side.  Your  differences  had  placed  the  partnership 
property  in  a  very  perplexing  situation  to  both  of  you;  and  the  set- 
tlement was  made,  not  by  arbitration,  but  by  the  agreement  of 
yourselves  in  all  the  material  points,  on  the  principle  of  the  mutual 
advantage  to  be  derived  from  mutual  concession.  Tyler  adds: 
By  such  delicate  treatment  of  the  feelings  of  both  parties,  he  made 
those  who  had  been  mutual  enemies,  mutual  friends.  ^^ 

Taney  argued  ^^  no  cases  before  the  Court  of  Appeals 
in  1814,  but,  in  1815,  he  appeared  as  counsel  in  no  less 
than  eight  cases:  Two  of  these  cases  were  of  ejectment, 
in  both  of  which  Taney  was  opposed  to  Luther  Martin 
and  was  defeated.  In  an  appeal  from  Frederick, ^^ 
Taney  was  associated  with  Key,  Shaaff  and  Brooke, 
but  in  an  ejectment  suit^^  coming  from  Washington 
County,  the  two  lawyers  faced  each  other  alone.  ^'^ 

His  most  important  case  during  1816,  was  an  appeal 
from  the  decree  of  the  Orphan's  Court  of  Anne  Arundel 
County,  admitting  to  probate  a  paper  which  had  not 
been  completed. ^^     In  this  case,  the  brilliant  array  of 

8^  The  Frederick  newspapers  for  August  21,  and  September  8, 1813,  announce 
that  Taney  and  Thomas  appear  for  the  plaintiff,  and  Pigman  for  the  defendant 
in  the  case  of  John  Johnson  v.  Joshua  Medtart,  in  which  case  a  Habeas  corpus 
de  homine  replegiando  was  sued  out. 

82  Shields  v.  Miller,  4  H.  &  J.  1. 

^  Easton  v.  Suavely,  4  H.  &  J.  17. 

^  Taney  also  lost  a  suit  for  debt  against  a  trustee  for  the  sale  of  land  in 
which  he  represented  the  defendant.  (Brooke  was  the  opposing  attorney, 
Schell  V.  State,  3  H.  &  J.  539.)  He  won  a  case  in  which  he  represented  the 
plaintiff,  claiming  fraud  in  the  sale  of  an  unsound  slave  (Duvall  v.  Medtart, 
4  H.  &  J.  14.  Shaaff  opposed  him),  and  in  a  question  of  a  warranty  of  a  slave, 
which  case  arose  in  Montgomery  County  (Chilton  v.  Jones,  4  H.  &  J.  62),  he 
argued  for  the  defendant.  He  won  two  other  unimportant  cases  from  that 
county:  of  replevin  for  rent  (Offutt  v.  Trail,  4  H.  &  J.  20),  and  on  an  adminis- 
tration bond,  opposing  Key  in  the  latter  case  (State  v.  Wootton,  4  H.  &  J.  21). 
A  case  involving  the  obligation  to  support  a  bastard  was  also  won  by  Taney, 
representing  the  father.  (Grantz  v.  State,  4  H.  &  J.  121.  Pigman  was  the 
opposing  counsel.) 

86 13  Md.  Hist.  Mag.,  p.  127.  Tilghman  v.  Steuart  4  H.  &  J.,  156.  The 
Library  of  Congress  possesses  a  manuscript  opinion  of  Taney,  dated  Nov.  27, 


ROGER  BROOKE  TANEY  71 

attorneys  comprised  Martin  and  Shaaff  as  Taney's 
associates  in  the  endeavor  to  reverse  the  Orphan's 
Court,  and  Robert  Goodloe  Harper,  Steuart  and  Pink- 
ney  as  their  opponents.  There  was  some  question  as 
to  whether  the  deceased  possessed  the  animus  testandi, 
when  the  paper  was  written,  and  the  case  was  one  of 
moment;  both  because  of  the  large  amount  of  property 
involved,  and  because  the  law  concerning  the  essentials 
of  a  will  necessary  to  pass  personal  property,  had  not 
been  settled  by  the  Maryland  Courts.  The  case  was 
argued  at  two  separate  terms  of  the  Court  of  Appeals, 
and  each  of  the  judges  delivered  a  separate  opinion; 
the  decision,  by  a  vote  of  3  to  2,  being  in  favor  of 
Taney's  contention,  and  reversing  the  decree  of  the 
Orphan's  Court. ^^ 

In  1817,  Taney  won  the  two  cases  in  which  he  ap- 
peared before  the  Appellate  Court.  One  of  these  in- 
volved the  rent  of  a  plantation  in  Montgomery  County, ^^ 
and  the  other  was  his  first  Baltimore  City  case,  in 
which  Harper  made  him  his  associate  for  the  appel- 
lant, and  won  it  against  the  strong  combination  of 
Martin,  Winder,  and  Winchester. ^^ 

Taney  did  not  believe  in  the  adage  that  he  who  ar- 
gues his  own  case  has  a  fool  for  a  client,  and,  in  1818, 
appeared,  in  propria  persona,  in  Taney  vs.  Kemp,^® 
and  won  his  suit,  an  action  for  trover  for  a  bill  obliga- 

1815,  given  to  D.  Howard,  attorney,  to  the  effect  that  one  Davis,  who  had 
leased  a  farm  in  trust  for  Deborah  Pleasants  in  Montgomery  County,  had 
received  sufficient  notice  to  give  up  the  farm,  if  his  term  had  expired,  no  crop 
had  been  planted,  and  a  month's  notice  had  been  given. 

^^  Singstack  v.  Harding,  4  H.  &  J.,  186.  Shaaff  opposed  him  and  won.  The 
case  involved  the  price  of  land  at  an  auction  sale. 

"  Benson  v.  Hobbs,  4  H.  &  J.  285. 

88  Howard  v.  Rogers,  4  H.  &  J.  278. 

89  4  H.  &  J.  348.    T.  C.  Worthington  was  the  opposing  counsel. 


72  ROGER   BROOKE   TANEY 

tory,  in  which  a  witness  refused  to  answer  a  question 
put  to  him. 

Three  victories  and  no  defeat,  was  his  record ^^  in 
1819.  The  first  of  these, ^^  involved  an  appeal  from 
the  Anne  Arundel  County  Orphan's  Court  as  to  a 
widow's  dower,  and  there  was  a  remarkable  array  of 
counsel.  Winder,  Chapman,  and  Marriott  opposing^ 
Pinkney,  Taney,  Magruder,  and  Stephen.  The  other 
cases  were  actions  of  assumpsit  in  one  of  which, ^2  arising- 
in  Baltimore  County,  Martin  and  Taney  opposed  Pink- 
ney and  Winder;  and,  in  the  other,  arising  in  Prince 
George's  County,  Ridout  and  Taney  faced  each  other 
without  associates. 93  In  the  latter  case,  a  son  had 
given  a  note  to  his  father,  who  indorsed  it  to  a  third 
person,  and  declared  his  intention  of  paying  the  note, 
though  no  demand  for  payment  had  been  made  on  the 
son,  and,  consequently,  no  due  notice  of  non-payment 
had  been  given.  Taney  argued  successfully  that,  if 
the  father's  promise  had  been  made  in  ignorance  of  the 
facts,  he  would  not  have  been  bound  as  the  endorser  of 
the  note,  but  the  legal  maxim,  ignorantia  legis  non 
excusat,  was  a  part  of  the  Common  Law  of  Maryland, 
and  affected  this  case.^^ 

Taney's  most  important  case  in  1819,  however,  was  his 
defense    of   Jacob    Gruber    in    the    Frederick    County 

'°  He  also  won  a  Montgomery  County  case  (Benson  v.  Anderson,  4  H.  &  J. 
315.  Magruder  opposed  him),  for  trespass  in  carrying  away  negroes,  and  an 
appeal  in  an  action  of  assumpsit  (Allston  v.  Contee,  4.  H.  &  J.  351,  Magruder 
was  opposing  counsel) ;  but  he  lost  an  appeal  from  Chancery,  involving  a  question 
of  proper  parties  to  a  case  (Smith  v.  Baldwin,  4  H.  &  J.  331).  In  another 
Chancery  case,  involving  the  sale  of  the  real  property  of  a  decedent,  he  won. 
Tyler  v.  Bowie,  4  H.  &  J.  333.  Magruder  was  with  him  and  Stephen  against 
him. 

»i  Coomer  v.  Clements,  4  H.  &  J.  480. 

«2  Burt  v.  Gwinn,  4  H.  &  J.  507. 

w  Beck  v.  Thompson,  4  H.  &  J.  530.  13  Md.  Hist.  Mag.,  128.  C.  J.  Chase 
dissented. 


ROGER  BROOKE  TANEY  73 

Court.  ^^  Gruber  was  a  Methodist  Presiding  Elder  in 
Pennsylvania,^^  who  visited  a  camp  meeting  in  Wash- 
ington County  in  August,  1818.  Rather  against  his 
will,  he  was  induced  to  take  charge  of  the  service  on 
the  16th,  and  delivered  a  sermon  of  an  hour's  length 
to  a  congregation,  estimated  as  comprising  3000  per- 
sons, of  whom  400  were  negroes.  His  subject  was: 
"National  Sins,"  his  text,^^  "Righteousness  exalteth  a 
nation,  but  sin  is  a  reproach  to  any  people."  After 
touching  upon  infidelity,  intemperance,  and  profanity 
as  such  sins,  he  continued  by  naming  slavery  as  also 
a  sin.  In  this  part  of  his  sermon,  he  said:  "We  live  in 
a  free  country;  and  that  all  men  are  created  equal  and 
have  inalienable  rights,  such  as  life,  liberty,  and  the 
pursuit  of  happiness,  we  hold  as  inalienable  truths. 
But  there  are  slaves  in  our  country,  and  their  sweat 
and  blood,  and  tears  declare  them  such.  The  voice 
of  our  brother's  blood  crieth.  Is  it  not  a  reproach  to  a 
man  to  hold  articles  of  liberty  and  independence  in  one 
hand,  and  a  bloody  whip  in  the  other,  while  a  negro 
stands  and  trembles  before  him,  with  his  back  cut  and 
bleeding?"  Gruber  also  compared  Pennsylvania,  where 
slavery  had  been  abolished,  with  Maryland,  to  the  dis- 
credit of  the  latter.  Some  of  the  slaveholders  were 
enraged  over  this  discourse,  and  felt  that  remarks  such 
as  these  were  likely  to  arouse  slaves  to  rebellion,  and 
thus  place  the  masters  and  their  families  in  danger. 
Accordingly,  a  w^arrant  was  issued  for  his  arrest;  he 
was  apprehended,  and  gave  bail.  The  Grand  Jury  of 
Washington   County  then  indicted    him,   for  instigat- 

^  See  Tyler,  p.  122  &  ff.,  W.  P.  Strickland,  "Life  of  Jacob  Gruber,"  espe- 
cially pp.  130  and  ff .  and  261  and  ff.,  13  Md.  Hist.  Mag.,  p.  136. 

35  Gruber  had  lived  in  Maryland  in  1814  and  1815,  and  had  been  pastor  of 
the  Light  and  Sharpe  Street  Methodist  Churches  in  Baltimore  City. 

9«  Prov.  XIV,  34. 


74  ROGER   BROOKE  TANEY 

ing  negro  slaves  to  ''commit  acts  of  mutiny  and  rebel- 
lion, in  contempt  and  in  open  violation  of  the  laws, 
good  order,  and  good  government  of  this  State,  and  to 
the  evil  and  pernicious  example  of  all  others  in  like 
case  offending,  and  against  the  peace,  government, 
and  dignity  of  the  State."  Gruber's  friends  had  in- 
terested themselves,  and  Rev.  S.  G.  Roszel  wrote  him 
from  Middletown,  on  October  10:  "I  have  seen  Brother 
Pigman,^^  on  the  business,  and  he  has  promised  to 
interest  on  your  behalf,  should  you  be  arrested,  Lawyer 
Taney,  the  most  influential  and  eminent  barrister  in 
Washington  and  Frederick"  Counties.  Roszel  ad- 
vised removal  of  the  case  to  Frederick.  Pigman  and 
Taney, ^^  who  took  up  the  case,  also  felt  that  such  re- 
moval was  desirable,  so  the  case  was  tried  at  Fred- 
erick, during  the  March  term  of  1819.  John  Buchanan 
presided  as  Chief  Justice,  and  Abraham  Shriver  and 
Thomas  Buchanan  sat  with  him  as  associates. ^^  Luther 
Martin  had  been  retained  to  assist  in  the  defence. 
Taney  made  the  opening  statement  for  the  defendant, 
Pigman  examined  the  witnesses,  and  all  three  lawyers 
made  impressive  arguments  before  the  jury,  after  the 
evidence  had  been  submitted.  Taney's  closing  argu- 
ment was  an  hour  in  length,  and  was  considered  "most 
effectual  and  conclusive,"  being  delivered  "with  his 
usual  eloquence  and  zeal."  His  opening  argument, 
however,  is  the  more  memorable,  for  it  showed  his 
feelings  as  to  slavery.  He  called  attention  to  the  fact 
that  Gruber  spoke  facing  the  whites  and  not  the 
negroes,  who  were  separately  placed  behind  the  pulpit 
stand,  as  showing  that  the  address  was  not  made  to 

^■^  Beene  S.  Pigman  of  Hagerstown. 

^^  Taney  was  largely  responsible  for  the  removal,  ''being  firmly  convinced 
that  there  was  no  just  cause  for  instituting  this  prosecution." 
^^  Franklin  Anderson  conducted  the  prosecution. 


ROGER   BROOKE  TANEY  75 

the  latter.  Gruber  was  not  on  trial  for  preaching  doc- 
trines calculated  to  disturb  the  peace  and  order  of 
society.  If  his  argument  was  merely  shown  to  be 
unsound  and  inflammatory,  the  indictment  was  not 
proven.  A  criminal  intent  must  be  made  to  appear, 
and  the  sermon  did  not  show  it.  "But  we  must  go 
farther,"  Taney  continued,  "and  maintain  the  civil 
and  religious  rights  of  free  speech." 

Taney  called  the  attention  of  the  jury  to  Gruber *s 
ministry  in  a  denomination  which  has  "steadily  in 
view"  the  "gradual  and  peaceful  abolition  of  slavery," 
and  which  forbade  a  slaveholder  to  become  a  member. 

Their  preachers  are  accustomed,  in  their  sermons,  to  speak 
of  the  injustice  and  oppression  of  slavery.  The  opinions  of 
Mr.  Gruber  on  the  subject  no  one  could  doubt,  and,  if  any  slave- 
holder believed  it  dangerous  to  himself,  his  family,  or  the  com- 
munity to  suffer  his  slaves  to  learn  that  all  slavery  is  unjust  and 
oppressive,  and  persuade  himself  that  they  would  not,  of  them- 
selves, be  able  to  make  the  discovery,  it  was  in  his  power  to  pre- 
vent them  from  attending  the  assemblies,  where  such  doctrines 
were  likely  to  be  preached.  Mr.  Gruber  did  not  go  to  the  slaves; 
they  came  to  him.  They  could  not  have  come,  if  their  masters 
had  chosen  to  prevent  them. 

Taney  forced  the  fighting,  and  said  that  Gruber 
felt  it  his  duty 

to  avow  and  to  vindicate  here  the  principles  which  he  maintained 
in  his  sermon.  There  is  no  law  which  forbids  us  to  speak  of  slavery 
as  we  think  of  it.  Any  man  has  a  right  to  publish  his  opinions  on 
that  subject,  whenever  he  pleases.  It  is  a  subject  of  national 
concern,  and  may,  at  all  times,  be  freely  discussed.  Mr.  Gruber 
did  quote  the  language  of  our  great  act  of  national  independence, 
and  insisted  on  the  principles  contained  in  that  venerated  instru- 
ment. He  did  rebuke  those  masters,  who,  in  the  exercise  of  power, 
are  deaf  to  the  calls  of  humanity;  and  he  warned  them  of  the  evils 


76  ROGER   BROOKE   TANEY 

they  might  bring  upon  themselves.  He  did  speak  with  abhor- 
rence of  those  reptiles,  who  live  by  trading  in  human  flesh,  and 
enrich  themselves  by  tearing  the  husband  from  the  wife,  the 
infant  from  the  bosom  of  the  mother;  and  this,  I  am  instructed, 
was  the  head  and  front  of  his  offending.  Shall  I  content  myself 
with  saying  he  had  a  right  to  say  this?  that  there  is  no  law  to 
punish  him?  So  far  is  he  from  being  the  object  of  punishment,  in 
any  form  of  proceeding,  that  we  are  prepared  to  maintain  the  same 
principles,  and  to  use,  if  necessary,  the  same  language  here,  in  the 
temple  of  justice  and  in  the  presence  of  those  who  are  the  ministers 
of  the  law. 

Then  followed  memorable  words: 

A  hard  necessity,  indeed,  compels  us  to  endure  the  evil  of  slavery 
for  a  time.  It  was  imposed  upon  us  by  another  nation,  while 
we  were  yet  in  a  state  of  colonial  vassalage.  It  cannot  be  easily, 
or  suddenly  removed.  Yet,  while  it  continues,  it  is  a  blot  on 
our  national  character;  and  every  real  lover  of  freedom  confidently 
hopes  that  it  will  effectually,  though  it  must  be  gradually,  wiped 
away;  and  earnestly  looks  for  the  means  by  which  this  necessary 
object  may  be  best  attained.  And  until  it  shall  be  accomplished, 
until  the  time  when  we  can  point  without  a  blush  to  the  language 
held  in  the  Declaration  of  Independence,  every  friend  of  humanity 
will  seek  to  lighten  the  galling  chain  of  slavery,  and  better,  to  the 
utmost  of  his  power,  the  wretched  condition  of  the  slave. 

This  forceful  and  shrewd  defence  made  such  an 
impression  upon  the  jury,  that,  after  short  delibera- 
tion, they  rendered  a  verdict  of  not  guilty.^^*^  ''There 
was  a  great  crowd,  great  curiosity,  and  great  excite- 
ment at  the  Court;"  but  the  case  is  chiefly  to  be  re- 
membered now,  because  of  Taney's  ringing  words, 
attacking  the  treasured  institution  of  the  South. 

^"^Gruber  wrote  afterwards  that  his  "chief  lawyer,"  probably  Taney,  was 
paid  $200  as  a  fee,  and  had  been  engaged  by  Gruber's  friends,  without  his  knowl- 
edge or  request.    Gruber  was  not  very  grateful  to  his  attorneys,  vide  Life,  p.  257. 


ROGER   BROOKE  TANEY  77 

Seven  cases  were  argued  by  Taney  before  the  Appel- 
late Court  in  1820.ioi 

He  lost  a  slander  suit  coming  from  Frederick,  in 
which  he  was  opposed  by  two  great  lawyers:  one, 
William  Pinkney,  of  a  passing  generation,  and  the  other, 
Reverdy  Johnson,  of  a  generation  just  coming  upon 
the  scene. ^°2  Taney  was  associated  unsuccessfully  with 
Pinkney  in  a  Chancery  appeal  concerning  a  trustee's 
rights  of  a  sale.^^^ 

Harper  called  Taney  in  1821  to  assist  him  in  winning 
the  case  of  Browne  v.  Kennedy,  in  which  Pinkney, 
Winder  and  Williams  were  the  opposing  counsel. ^^^^ 
The  suit  in  ejectment  involved  riparian  rights,  founded 
on  the  original  proprietary  title,  to  land  reclaimed  from 
the  navigable  waters  of  Maryland.  Chief  Justice 
Chase  delivered  the  opinion  of  the  court  in  favor  of 
Harper's  and  Taney's  contention  that,  under  the  laws 
of  England  and  the  charter  of  Maryland,  the  grantees 
of  property  on  both  sides  of  Jones's  Falls  in  Baltimore 
City,  obtained  the  right  of  accretion  by  alluvion,  or  by 
the  gradual  recession  of  the  waters  ad  filum  medium 
aquae.  He  also  won  an  appeal  from  a  judgment  against 
a  debtor,  ^"^^  in  which  case  he  and  Pinkney  argued  against 
William   Schley   and    Reverdy   Johnson.     Three   cases 

1°^  He  won  one  and  lost  the  other  (Fonher  v.  Kemp,  5  H.  &  J.,  135.  Ride- 
out  opposed  him)  of  the  two  ejectment  cases  from  Washington  County.  From 
the  same  county  came  a  case  (Beall  v.  Bayard,  5  H.  &  J.  127)  involving  tres- 
pass upon  the  Antietam  Iron  Works,  in  which  he  was  opposed  by  Martin  at 
first,  and  was  defeated,  but,  securing  a  new  trial,  in  which  he  was  opposed  by 
Stephen,  he  was  finally  successful  (Snevely  v.  M'Pherson,  5  H.  &  J.  150).  He 
won  an  appeal  in  action  of  assumpsit  from  Frederick  (HagerstownTurnpike 
Road  v.  Cruger,  5  H.  &  J.  122,  Pigman  opposed  him),  and  an  action  of  trover 
brought  against  a  Deputy  Sherijff,  who  was  Taney's  client.  Mark  v,  Lawrence, 
5  H.  &  J.  64.    Pigman  opposed  him. 

"2  House  V.  House,  5  H.  &  J.  125. 

103  Davis  V.  Simpson,  5  H.  &  J.  147.    Pigman  was  opposing  counsel. 

104  5  H.  &  J.  195.    Tyler,  132.     13  Md.  Hist.  Mag.,  p.  130 
!•»  Creager  v.  Brengle,  5  H.  &  J.  234. 


78  ROGER   BROOKE   TANEY 

were  lost  by  Taney,  however,  In  that  year:  A  suit  of 
replevin  for  slaves,  arising  in  Montgomery  County, ^^^ 
a  case^^^  involving  an  executory  contract  coming  from 
Washington  County,  and  a  petition  for  freedom  made 
by  negroes  in  Harford  County. ^^^  In  this  case,  he 
was  opposed  by  the  forgotten  political  economist, 
Daniel  Raymond,  and  by  Reverdy  Johnson,  and  was 
without  assistance.  A  deed  of  manumission  had  actual- 
ly been  executed,  in  compliance  with  the  provisions 
of  a  will,  and  Taney  was  unable  to  upset  the  verdict  of 
the  County  Court,  which  granted  emancipation  to  the 
ten  negroes  who  claimed  it.  Taney  had  manumitted 
his  own  slaves,  and,  in  the  Gruber  case,  had  announced 
his  opposition  to  slavery;  but  he  saw  no  inconsistency, 
in  endeavoring  to  secure  for  slaveholders,  what  he 
believed  to  be  their  rights  under  the  law  of  the  State. 

In  1822,  he  fought  to  a  successful  issue  a  suit  involv- 
ing a  devise  to  St.  Peter's  Protestant  Episcopal  Church 
in  Baltimore  City.  Assisted  by  Winder  and  Murray, 
and  opposed  by  Harper  and  Reverdy  Johnson, ^^^  he 
secured  a  decision  from  the  Appellate  Court  to  the 
effect  that  the  Statute  of  43  Elizabeth  as  to  Charitable 
Uses  was  not  in  force  in  Maryland,  and  that,  indepen- 
dently of  that  Statute,  Chancery  cannot  enforce  a  devise 
to  charitable  uses.  He  also  won  a  chancery  appeal  from 
Anne  Arundel  County.^^^  The  other  two  cases  which 
he  argued  in  that  year,  were  lost  by  him.  In  one  of 
these,  1^1  he  was  allied  with  Harper  against  Wirt,  and, 

^^  Stephen  opposed  Taney  and  Schley.     Culver  v.  Shriner,  5  H.  &  J.  218. 

^°^  Reverdy  Johnson  and  Schley  opposed  Taney  and  Maynadier.  Eichelber- 
ger  V.  M'Cauley,  5  H.  &  J.  213. 

108  Hughes  V.  Negro  Milly,  5  H.  &  J.  311.     13  Md.  Hist  Mag.,  p.  132. 

"9  Dashiell  v.  Attorney  General,  5  H.  &  J.  392. 

"°  Warfield  v.  Warfield.  Taney  and  Winder  opposed  Pinkney  and  Magru- 
der.    5  H.  &  J.  459. 

Ill  Patterson  v.  Marine  Insurance  Company,  5  H.  &  J.  417. 


ROGER   BROOKE  TANEY  79 

vainly,  endeavored  to  induce  the  Court  of  Appeals  to 
take  his  view  as  to  an  action  of  covenant  on  an  insur- 
ance policy  issued  on  a  ship  for  a  voyage  in  1813,  from 
Baltimore  to  Lisbon,  on  which  voyage  the  British 
seized  the  ship.  In  the  other  case,  arising  in  Charles 
County,  "2  the  suit  was  brought  for  slander  as  to  words 
spoken  to  a  United  States  Senator  concerning  another 
man's  fitness  for  office,  and  the  Court  ruled  that  malice 
had  not  been  proven,  and  that  the  words  spoken,  con- 
fidentially, in  answer  to  the  Senator's  request  for  in- 
formation, were  not  actionable. ^^^ 

Before  removing  from  Frederick  in  1823,  Taney 
argued  three  cases  before  the  Court  of  Appeals,  all  of 
which  he  won.  One  of  these  cases  concerned  a  bequest  in 
Caroline  County  to  charitable  uses,  and  was  won  by 
Taney  and  his  associates,  the  same  lawyers  being  en- 
gaged as  in  the  Baltimore  case  of  the  preceding  year.^^* 
In  a  second  case,  he  secured  the  setting  aside  of  a  ver- 
dict against  a  man  accused  of  giving  a  pass  improperly 
to  a  slave, ^1^  while  the  third  case  was  a  chancery  one, 
involving  an  award  by  arbitrators. ^^^ 

It  is  interesting  to  note  that  not  one  case  argued  by 
Taney  came  from  the  Eastern  Shore,  that  only  one  came 
from  Taney's  native  county,  and  that  the  great  major- 
ity of  them  were  from  Frederick  and  its  adjoining  coun- 
ties. Taney  felt  that  this  "pent  up  Utica"  should  not 
longer  "contain  his  powers,  "and  prepared  to  remove  to 
Baltimore. 11^     In    February,  1823,  he     sold   his   home 

"2  He  was  opposed  by  Harper  and  Magnider  and  associated  with  Winder 
and  A.  C.  Bullitt. 

"3  Law  V.  Scott.    5  H.  &  J.  438. 

"4  Dashiell  v.  Attorney  General.     6  H.  &  J.  1. 

"5  Duvall  V.  State.     6  H.  &  J.  9.    T.  B.  Dorsey  opposed  Taney. 

11®  Cromwell  v.  Owings.  6  H.  &  J.  11.  Taney  and  Winder  were  opposed 
by  Heath  and  Reverdy  Johnson. 

"7 13  Md.  Hist.  Mag.,  p.  140. 


80  ROGER  BROOKE   TANEY 

on  Bentz  Street,  together  with  about  two  acres  of  land, 
and  his  furniture  was  sold  at  auction  on  April  25.  The 
lot  he  had  bought  on  Church  Street,  was  also  offered 
for  sale,  but  was  not  disposed  of  until  a  year  later. 

He  was  forty-six  years  of  age  when  he  left  Frederick, 
and  he  ever  retained  an  affection  for  the  place,  which 
led  him  to  have  his  body  buried  there. ^^^  After  he  died, 
Reverdy  Johnson,  whose  rise  to  prominence  at  the 
bar  was  coincident  with  the  later  years  of  Taney's 
Frederick  career,  spoke  thus  of  Taney,  as  he  knew  him 
in  an  acquaintance  dating  back  to  18 15,^1^  in  which 
year  Johnson  ''was  admitted  to  practice  in  the  Court 
of  Appeals.  At  that  time,  the  Maryland  Bar  was  adorn- 
ed by  Winder,  Dorsey,  Harper,  Pinkney,  and  Martin, 
all  of  them  men  of  profound  legal  learning,  some  of 
them  of  dazzHng  and  extraordinary  eloquence."  ''In 
this  galaxy  of  talent,"  Johnson  continued,  "Mr.  Taney 
shone  with  a  splendor  that  challenged  admiration,  and 
made  him,  in  the  opinion  of  all,  their  equal.  Whilst 
enjoying  the  confidence  of  his  elder  brethren  and  ad- 
mitted to  be  in  every  way  their  peer,  he  was  especially 
dear  to  his  juniors.  It  was  my  good  fortune  to  have 
his  confidence  and  his  friendship  almost  from  the  first, 
and  greatly  did  I  profit  by  it.  Often  his  associate, 
and  often  his  opponent,  I  had  constant  opportunities 
of  judging  of  his  legal  learning,  of  his  ability  in  its  use, 
and  the  fair  and  elevated  ground  upon  which  he  ever 
acted.  In  neither  relation  is  it  possible  to  exaggerate 
his  excellence.  In  those  respects,  he  was  a  model  that 
his  elder  contemporaries  were  proud  of,  and  his  juniors 
admired  and  kept  before  them  as  an  example." 

"8S.  T.  Wallis's  Works,  I,  143. 
"» Tyler,  p.  493. 


CHAPTER  V 

Career  at  the  Baltimore  Bar  (1823-1831) 

In  1823,  Taney  removed  to  Baltimore  to  secure  a 
wider  field  for  his  practice  and  took  a  house  on  South 
Gay  Street,  whence  he  removed  in  1825,  to  a  double 
house  on  the  north  side  of  Lexington  Street,  one  door 
east  of  the  corner  of  St.  Paul  Street,  a  house  which  stood, 
occupied  by  lawyers'  offices  in  its  later  years,  until  it 
was  torn  down  in  March,  1918.  He  was  opposite  the 
Court  House,  a  little  over  a  block  from  the  Battle 
Monument,  and  little  further  away  from  Guy's  and 
Barnum's  Hotels.  John  H.  B.  Latrobe  lived  next  to 
him,  on  the  corner,  and  the  relations  of  the  two  neigh- 
bors were  not  always  pleasant.^  Severn  Teackle  Wallis, 
who  was  to  be  Taney's  eulogist,  lived  around  the  corner, 
and  Reverdy  Johnson  lived  opposite  Barnum's  Hotel,  and 
so  was  not  far  away.  The  society  was  a  compact  little 
one  into  which  Taney  entered  and  one  in  which  lawyers 
were  an  important  social  element.  The  bar  was  a  bril- 
liant one.  Martin  and  Pinkney  had  recently  died,  but 
William  H.  Winder  and  Robert  Goodloe  Harper^  were 
in  full  practice  and  William  Wirt  came  frequently  to 
try  cases,  although  he  did  not  remove  to  Baltimore  until 
1829.3  Reverdy  Johnson,  in  his  later  years,  wrote^  that 
the  leading  lawyers  in  Baltimore  at  that  time  were  "as 

1  See  John  E.  Semmes,  "Life  of  J.  H.  B.  Latrobe,"  p.  202,  Reverdy  Johnson 
served  as  arbitrator,  when  Taney  claimed  that  Latrobe  trespassed  upon  his  lot, 
in  the  course  of  extending  a  backbuilding. 

2  Latrobe  read  law  in  his  ofl&ce,  Semmes's  Latrobe,  98. 

3  John  P.  Kennedy's  "Life  of  Wirt,"  vol.  II,  p.  226. 

*  Letter  to  Samuel  Tyler  July  6,  1871  in  Maryland  Historical  Society. 
13  Md.  Hist.  Mag.  169. 

81 


82  ROGER  BROOKE  TANEY 

able  as  any  members  of  the  profession  in  the  country" 
and  Kennedy's  praise  is  not  too  high,  when  he  states 
that  the  Baltimore  bar  of  those  times  "was  distinguished 
by  an  extraordinary  assemblage  of  the  highest  order  of 
talent: — men  who  singly  would  have  shed  lustre  upon 
any  professional  assemblage  in  the  country  and  who, 
united  on  this  theatre,  composed  a  constellation  which 
attracted  universal  notice."  During  the  twenties,  four 
of  the  six  leaders  of  the  bar  died  shortly  after  each  other 
and  soon  only  Taney  remained,  but  the  younger  genera- 
tion were  not  unworthy  successors  and  Jonathan  Mere- 
dith, Reverdy  Johnson,  John  V.  L.  McMahon,  John 
H.  B.  Latrobe,  John  Glenn,  and  William  Schley  stepped 
into  the  places  left  by  the  earlier  men.  At  the  head 
of  this  group  stood  Wirt  and  Taney — "instructors  to 
guide,  models  to  be  imitated,  gifted  with  all  qualities 
to  stimulate  the  ambitions  of  generous  minds  striving 
after  an  honorable  reputation,"  as  Kennedy  writes. 

Wirt  told  an  amusing  incident  in  reference  to  Taney, 
in  a  letter  written  Mrs.  Wirt  from  Baltimore,  on  October 
30,  1825,  the  day  after  both  lawyers  had  dined  at  Mr. 
Oliver's  with  the  Duke  of  Saxe  Weimar,  who  was 
visiting  America.  The  Duke  sat  between  Messrs. 
Oliver  and  Barney,  "neither  of  whom  seemed  to  be 
able  to  find  him  in  talk."  Wirt  sat  next  Taney,  until 
the  latter,  who  is  described  by  Wirt  as  "a  pious  Roman 
Catholic,  as  well  as  a  most  amiable  gentleman,"  said,^ 
"Come,  Mr.  Barney,  Mr.  Wirt  and  I  sit  side  by  side 
quite  enough  in  Court;  let  me  change  places  with  you," 
his  object  being  to  amuse  the  Duke.  The  change  was 
made  and  the  Duke  soon  pronounced  a  "philippic 
against  the  Roman  Catholic  religion,  which  he  blamed 
for   all    the   political   conspiracies   in    Europe.     Taney 

» Tyler  p.  161  quoting  Kennedy's  Wirt  II  p.  177. 


ROGER   BROOKE   TANEY  S3 

took  the  occasion  to  tell  him  that  he  was  a  Roman 
Catholic.  This  produced  some  embarrassment,  but  the 
Duke  got  over  it.  Taney  changed  the  subject  to  the 
war,  in  which  the  Duke  had  figured  particularly  at 
Waterloo — and  unluckily  asked  the  Duke  about  Blucher. 
Now  Blucher,  it  seems,  had  on  some  occasion  gone  into 
the  Duke's  territories,  and  was  exacting  contributions 
from  his  subjects,  which  the  Duke  hearing  of,  he  had 
him  put  in  prison.  So  here  was  a  new  contretemps,  fol- 
lowed by  a  general  pause  at  the  table." 

Soon  after  his  arrival  in  Baltimore,  Taney  was  elected 
counsel  for  the  Union  Bank  of  Maryland  and  also  became 
one  of  its  directors.  The  president  of  this  institution 
was  a  man  of  great  power,  Thomas  Ellicott,^  and  the 
senior  director  was  a  much  respected  Hebrew,  Solomon 
Etting.  The  association  with  these  men  and  the  nat- 
ural rivalry  between  bankers  goes  far,  as  we  shall  see, 
to  explain  Taney's  deep  seated  hostility  towards  the 
United  States  Bank,  of  which  a  branch  was  located  in 
Baltimore. 

A  second  momentous  event  in  Taney's  life  occurred 
shortly  after  his  removal  from  Frederick.  He  had  been 
a  life  long  Federalist  and  had  never  forgiven  John  Quincy 
Adams  for  his  acceptance  of  the  position  of  the  Jefferson- 
ian  Republicans  in  the  years  preceding  the  War  of  1812. 
In  1824,  Adams  became  a  candidate  for  the  Presidency. 
So  personal  was  political  feeling  in  those  days  that  impor- 
tant Federalist  leaders  in  Maryland  felt  that  they  could 
ifet  support  Adams.  Robert  Goodloe  Harper,  still 
claiming  to  be  a  ''staunch  Federalist,"  commented  to 
Latrobe  in  "no  measured  terms"  on  Adams'  conduct, 
as  of  one  who  had  left  that  party,  and,  because  of  Har- 
per's influence,  Latrobe  voted  for — Andrew  Jackson!^ 

^  Semmes's  Latrobe  399  to  410. 
^  Semmes's  Latrobe,  pp.  111,  119. 


84  ROGER  BROOKE   TANEY 

Charles  Carroll  of  Carrollton,  who  had  always  been  a 
Federalist,  agreed  with  his  son-in-law,  Harper,  and  so 
did  Taney.  Carroll  and  Taney  urged  Henry  Ridgeley 
Warfield,  a  member  of  the  House  of  Representatives 
from  Western  Maryland,  to  vote  for  Jackson,  when 
the  election  came  up  in  the  House,  into  which  it  had 
been  thrown,  since  no  one  had  secured  a  majority  in 
the  electoral  college.  Warfield  went  to  Adams^  with  an 
undecided  mind  and  said  that  Carroll  and  Taney  were 
^' under  the  impression"  that,  if  Adams  "should  be 
elected,  the  administration  would  be  conducted  on  the 
principle  of  proscribing  the  Federalist  party."  Adams 
told  Warfield  that  he  would  "proscribe  no  party.  It 
was  true  that  he  had  differed  from  the  Federalist  party, 
but  had  always  done  justice  to  the  individuals  com- 
posing it."  He  expressed  regret  that  Taney,  "of  whose 
talents  I  heard  high  encomiums,  should  harbor  such 
opinions  of  me."  Warfield  went  away  satisfied  to  vote 
for  Adams,  but  this  seemingly  capricious  and  unreason- 
able decision  of  Taney  to  vote  for  Jackson  was  never 
reconsidered  and  led  him  to  become  a  thorough  supporter 
and  intimate  friend  of  the  founder  of  the  Democratic 
party. 

Taney  supported  Jackson  in  1828,  when  he  defeated 
Adams,  and,  by  this  time,  had  become  a  thorough  advo- 
cate of  the  Democratic  party.  He  was  now  recognized 
as  one  of  the  leaders  of  that  party  in  Maryland,  as  he 
had  been  of  the  Federalists.  He  wrote  confidentially^  on 
August  14,  1829,  to  recommend  Mr.  Sands  for  the  col- 
lectorship  of  the  customs  at  Annapolis.  Ingham  sus- 
pected Taney  of  being  governed  by  old  political  attach- 

8  On  February  17, 1825,  J.  Q.  Adams's  Memoirs,  VI,  499. 
•  Taney  was  about  to  spend  a  fortnight  in  Taneytown.    Manuscript  in 
New  York  Public  Library. 


ROGER   BROOKE  TANEY  85 

inents,  but  Sands'  appointment,  especially  since  Green, 
the  Annapolis  postmaster,  was  a  Federalist,  would 
advance  the  "cause  of  Jacksonism,"  which  Taney  pro- 
fessed to  be  the  "only  -ism  about  which  I  now  feel  any 
concern."  He  had  recommended  no  other  officer  out- 
side of  Baltimore.  On  September  16,  he  wrote  again, ^'^ 
after  a  visit  to  Frederick,  in  which  county  he  hoped  the 
Jacksonians  would  carry  the  election  and  also  obtain 
a  majority  in  the  House  of  Delegates.  He  still  pre- 
ferred to  have  Sands  appointed,  but  had  not  known  that 
so  many  wished  the  office.  He  felt  that  "the  interest 
of  the  party"  required  the  appointment  and  that  the 
"appointment  of  another  Federalist  to  the  only  other 
office  under  the  general  government  worth  having  would 
not  be  well  received." 

We  catch  a  few  miscellaneous  glimpses  of  Taney  dur- 
ing this  period.  Writing  from  Washington^^  to  his 
daughter  Sophia  on  February  22,  1825,  he  spoke  of  his 
indisposition;  of  his  missing  his  family,  and  of  the 
trouble  that  his  daughter  Maria  suffered  from  her  eyes. 
He  was  becoming  known  outside  the  State,  so  that, 
when  Latrobe  visited  the  aged  James  Madison^^  j^  1832, 
the  latter  asked  a  great  many  questions  about  Taney  and 
his  opinions  and  got  Latrobe  to  describe  him.  Always 
a  devout  worshipper  in  the  Roman  Catholic  Church 
he  became  the  adviser  for  Archbishop  Ambrose  Marechal 
of  Baltimore,  in  a  controversy  which  the  prelate  had 
with  the  Jesuits.  We  find  a  curious  linking  of  Taney 
with  the  Roman  advocates  and  jurists,  when  we  read  that 

^^  His  correspondent  had  offended  Schley  and  Taney  advised  him  to  write 
Schley  and  state  that  the  information  contained  in  Smith's  letter  was  not 
received  from  him.  Taney  would  have  spoken  to  Schley  about  the  matter,  if 
he  had  seen  him.    Manuscript  in  New  York  Public  Library. 

"  13  Md.  Hist.  Mag.  171. 

^2  Semmes's  Latrobe,  p.  244. 


86  ROGER   BROOKE  TANEY 

Mar6chal  relied  on  *'clarissimum  R.  B.  Taney,  qui  inter 
jurisperitos  nostros  longe  eminent,  qui  per  plures  annos 
honorabili  officio  senatoris  in  legislatum  Marylandi  func- 
tus est.''  Taney  advised  Marechal  that  it  would  not  be 
improper  to  refer  the  controversy  to  Pope  Pius  VII. 
Word  of  this  came  to  John  Quincy  Adams,  who  was  then 
Secretary  of  State,  and,  through  D.  Brent,  the  Chief 
Clerk  of  the  Department,  he  sent  Marechal  a  letter, 
"regretting  the  appeal  to  a  foreign  state,  touching  the 
administration  of  temporal  concerns"  under  the  juris- 
diction of  this  country.  On  receipt  of  the  letter, 
Marechal  showed  it  to  Taney,  when  he  came  to  the 
archbishop's  residence,  on  Sunday,  October  24,  1824, 
after  mass,  and  that  ''amiable  and  excellent  gentleman" 
was  deeply  affected  by  the  report  of  the  ''false  colors 
under  which  Marechal's  proceedings  had  been  repre- 
sented" to  Mr.  Adams.13 

In  1827,  Governor  Kent,  who  was  a  Federalist, 
appointed  Taney  as  Attorney  General  of  Maryland, 
upon  the  unanimous  recommendation  of  the  Baltimore 
Bar.i^  In  later  life,  Taney  often  said  that  this  was  the 
only  office  he  desired  to  hold.  The  Attorney  General 
at  that  period  "had  the  appointment  of  Deputy  Attor- 
neys of  the  State  in  the  several  judicial  districts"  and 
Tyler  informs  us  that  "in  these  appointments,  while  he 
showed  his  regard  for  the  public  interests,  he  mani- 
fested his  personal  friendships  for  those  who  stood  in 
need  of  aid  in  their  struggles  at  the  beginning  of  pro- 
fessional life.i^  The  records  of  the  office  were  imper- 
fectly kept  and  Governor  Albert  C.  Ritchie,  when 
Attorney  General,  could  find  no  references  in  the  office 

"  Thos.  Hughes,  "History  of  the  Jesuits  in  North  America,"  Documents  I, 
pp.  491,  556, 1073,1079,1148. 
14  Tyler,  p.  163. 
16  Tyler,  p.  164. 


ROGER  BROOKE  TANEY  87 

to  Taney's  incumbency.  He  held  the  position  until 
July  23,  1831,  when  he  resigned,  to  accept  the  Attorney- 
Generalship  of  the  United  States.  We  possess,  however, 
a  vivid  description  of  his  appearance  at  that  time  from 
Latrobe's  graphic  pen.^' 

When  Mr.  Taney  rose  to  speak,  you  saw  a  tall,  square  shouldered 
man,  flat  breasted  in  a  degree  to  be  remarked  upon,  with  a  stoop 
that  made  his  shoulders  even  more  prominent,  a  face  without  one 
good  feature,  a  mouth  unusually  large,  in  which  were  discolored 
and  irregular  teeth,  the  gums  of  which  were  visible  when  he 
smiled,  dressed  always  in  black,  his  clothes  sitting  ill  upon  him, 
his  hands  spare  with  projecting  veins, — in  a  word  a  gaunt,  ungainly 
man.  His  voice,  too,  was  hollow,  as  the  voice  of  one  who  was 
consumptive.  And  yet,  when  he  began  to  speak,  you  never 
thought  of  his  physical  appearance,  so  clear,  so  simple,  so  ad- 
mirably arranged,  were  his  low  voiced  words.  He  used  no  gestures. 
He  used  even  emphasis  but  sparely.  There  was  an  air  of  so  much 
sincerity  in  all  he  said  that  it  was  next  to  impossible  to  believe 
he  could  be  wrong.  Not  a  redundant  syllable,  not  a  phrase 
repeated,  and,  to  repeat,  so  exquisitely  simple.  I  remember  once 
hearing  him  in  a  complicated  case,  and  when  he  sat  down,  fancy- 
ing that  I,  in  my  first  year's  practice,  could  have  done  as  well, 
so  simple  had  become  complications  in  his  hands. 

The  story  is  told  that  William  Pinkney  said  of  Taney : 
"I  can  answer  his  arguments,  I  am  not  afraid  of  his 
logic,  but  that  infernal  apostolic  manner  of  his,  there  is 
no  replying  to."^^ 

His  manner  to  young  lawyers  was  considerate  and 
quite  different  from  Wirt's.  When  Robert  Goodloe 
Harper  died,  Latrobe  was  asked  to  take  his  place  in  a 
suit  and  be  junior  counsel  to  Taney. ^^     Taney  asked  to 

^'  Semmes's  Latrobe,  p.  202. 
^■^  Semmes's  Latrobe,  p.  203. 

^8  Semmes's  Latrobe,  p.  200.  The  case  was  probably  Oliver  v.  Gray  1 
H.  &  J.  204. 


88  ROGER   BROOKE   TANEY 

see  the  brief  which  Latrobe  had  prepared  and  ''spoke 
kindly  of  it  and  then,  saying  that  it  was  only  fair"  that 
Latrobe  should  see  his  brief,  handed  it  to  Latrobe. 
When  Latrobe  proposed  to  return  it,  "Not  at  all,"  Taney 
replied,  "I  placed  it  at  your  disposal.  If  you  can  make 
use  of  it,  I  shall  be  better  pleased,  though  do  not  let  it 
interfere  with  your  own  line  of  argument."  When  La- 
trobe said  ''something  about  availing  of  his  labors,"  he 
answered:  "Never  mind  that,  I  shall,  no  doubt,  find 
something  to  say  in  answer  to  the  other  side — some 
pickings  and  stealings."  After  writing  down  the  account 
of  this  incident,  Latrobe  added:  "This  was  Mr.  Taney's 
way  invariably.  In  numerous  cases  afterwards,  he  was 
the  same  liberal  colleague." 

Together  with  Jonathan  Meredith,  Taney  and  Latrobe 
were  counsel  for  Mrs.  Barnum  in  the  Barnum-Gilmor 
divorce  case,  before  the  General  Assembly,  a  cause 
celehre  of  that  period.  When  the  three  had  gone  over 
Latrobe 's  report  of  her  story,  before  the  evidence  had 
been  given,  Taney  said  to  his  associate  :^^ 

Are  you  quite  sure,  Brother  Latrobe,  that  the  Committee  on 
Divorces  will  not  suspect  your  handiwork  as  they  listen  to  the 
production?  Suppose  now  that,  without  altering  an  idea  or 
changing  the  position  of  a  sentence,  you  try  how  simply  you  can 
tell  the  story.  The  facts,  you  know,  are  all  we  want  and  these 
in  the  fewest  words. 

Taney  was  counsel  for  the  venerable  Charles  Carroll 
of  Carrollton  and  drew  up  his  will,  except  the  last 
codicil,  of  which  Mr.  Latrobe  was  the  author,^^  and  an 
interesting  light  is  thrown  upon  Taney's  practice  by  a 
letter  he  wrote  Carroll,  on  January  1,  1825,  concerning 

^'  Semmes's  Latrobe,  p.  209. 
«o  Semmes's  Latrobe,  p.  290. 


ROGER   BROOKE  TANEY  89 

the  Browning  claim. ^i  Taney  advised  that  the  case  be 
compromised,  as  probbably  this  could  be  done  for  less 
than  Taney  should  charge  for  his  argument  in  the  case. 
Mr.  Carroll .  persisted  in  the  prosecution  of  the  case 
which  finally  reached  the  Supreme  Court  of  the  United 
States,  as  we  shall  see.22 

Taney's  ''only  aim  in  life"  at  this  time  was  profes- 
sional.2^  "He  worked  by  day  and  by  night.  Profes- 
sional duties  and  his  home  circle  occupied  his  whole 
time.  Not  a  moment  was  spent  in  fashionable  life. 
He  looked  at  the  world  from  the  point  of  duty"  and  yet 
his  earlier  biographer  adds  that  he  did  not  omit  "greeting 
with  singular  cordiality  every  one  he  met." 

Taney's  practice  was  not  as  extensive  and  lucrative  as 
that  of  Reverdy  Johnson  and,  curiously  enough,  he  lost 
a  very  large  proportion  of  the  cases  in  which  he  was 
engaged  in  the  Court  of  Appeals.  Defeat,  however, 
never  daunted  him  and  I  suspect  that  he  took  many  of 
the  cases  because  they  were  hard.  He  practiced  in  the 
United  States  District  and  Circuit  Courts  and,  of  course, 
a  very  large  part  of  his  time  was  occupied  by  that  nisi 
prius  work,  so  important  for  the  well-being  of  the  com- 
munity and  yet  having  so  little  permanent  record  for 
the  biographer. 

In  1823,  he  appeared  as  counsel  in  three  cases  in  the 
Court  of  Appeals,  in  one  of  which  he  acted  as  counsel 
for  the  Union  Bank.  The  cases  dealt  with  a  sheriff's 
qualifications,  debt  on  an  appeal  bond,  and  the  alleged 
negligence  of  a  bank  in  regard  to  an  insolvents'  bill.^^ 

21  Manuscript  in  New  York  Public  Library. 

22  Henry  Carroll  administrator  of  Louisa  Browning  v.  Charles  CarroU  of 
CarroUton  11  Wheaton  135. 

23Tyler,pp.  160,  166. 

2^  6  H.  &  J.  1 16,  Roberts  v.  Gibson,  appeal  from  Chancery.  Wirt,  Magruder 
and  Kerr  against  F.  B.  Dorsey  and  Taney;  (Taney's  first  Eastern  Shore  case); 


90  ROGER   BROOKE   TANEY 

Seven  cases  are  reported  in  1824,  in  which  Taney  was 
engaged  as  counsel. ^^  The  year  1825  was  a  busy  one  for 
Taney  in  the  Court  of  Appeals,  for  fourteen  cases  are 
reported  in  which  he  made  arguments  there. ^^  One  is 
impressed  by  the  brilliancy  of  the  Bar,  and  notices  the 
facts  that  a  case  is  seldom  managed  by  one  lawyer  and 
that  the  grouping  of  the  lawyers  changes  in  a  kaleido- 
scopic manner.  In  two  of  these  cases,  Taney  was 
opposed  to  Key,  his  brother-in-law,  and,  in  one,  he  was 
associated  with  him.  His  practice  included  cases  from 
Western  and  Southern  Maryland  as  well  as  from  Balti- 
more and  its  vicinity. 

134  Karthaus  v.  Owings.    Winder  against  Taney  and  Reverdy  Johnson; 
146  Jackson  v.  Union  Bank,  Winder  and  Myers  against  Taney  and  Mitchell. 

25  Three  of  these  dealt  with  title  to  land  (one  of  which  was  an  action  in 
ejectment  and  the  others  were  equitable  cases),  one  was  for  a  debt  claimed  as 
due  on  a  bond,  one  an  execution  on  a  judgment,  one  an  alleged  false  return 
of  a  sheriff,  and  one  an  assault  and  battery  case. 

6.  H.  &  G.  182  Barney  v.  Patterson's  Lessee,  Wirt  and  Harper  v.  Taney  and 
IMagruder;  229  Graham  v.  Yales,  Taney  and  Reverdy  Johnson  against  Harper 
and  Magruder;  231  Cranford  v.  the  State,  Taney  against  Magruder;  261, 
Smith  V.  Dorsey,  Ashton  and  Reverdy  Johnson,  against  Magruder  and  Taney; 
264  Harding  v.  Stevenson,  Reverdy  Johnson  and  Glenn,  against  Wirt  and 
Taney;  268  State  v.  Dashiell,  T.  B.  Dorsey  and  Nicholas  against  Taney  and 
Tyson;  288  Drury  v.  Conner,  Taney  and  Scott  v.  Magruder  and  Brewer. 

26  Of  the  fourteen  cases  four  were  chancery  ones  (one  of  these  dealt  with 
the  recovery  of  money  and  one  with  a  deed  to  land),  two  were  actions  of  eject- 
ment, two  were  actions  of  assumpsit  to  recover  a  paving  tax,  one  was  on  a 
covenant,  one  on  the  rights  of  trustees,  one  on  the  construction  of  a  will,  one 
on  the  endorsement  of  a  note,  one  on  a  lease  of  land  and  rents,  one  was  an 
action  of  replevin  for  a  slave  in  St.  Mary's  County. 

6.  H.  &  J.  302.  Thompson  v.  McKim.  Stewart,  Taney  and  Wirt  against 
Emory  and  Winchester:  336  Beall  v.  Tyson,  Taney  against  Harper  and  Speed; 
364  Lyles  v.  Digges,  Magruder  and  F.  S.  Key  against  Jones,  Taney  and  Mar- 
shall; 375  Mayor  of  Baltimore  v.  Moore,  Taney  and  Scott  against  Harper, 
Reverdy  Johnson,  and  Howard;  383,  Mayor  of  Baltimore  v.  Howard,  Same 
lawyers;  408  Allegre  v.  Md.  Ins.  Co.,  Mayer,  John  Glenn  and  Taney  against 
Lloyd  and  Wirt;  415  Fenwick  v.  Forrest,  Causin  and  F.  S.  Key  against  Ma- 
gruder and  Taney;  427,  Williams  v.  Ellicott,  Taney  v.  R.  B.  Magruder; 
460  Wirt  V.  Briscoe,  Taney,  Magruder  and  F.  S.  Key  against  Jones  and  Reverdy 


ROGER  BROOKE  TANEY  91 

In  1825,  Taney  was  admitted  to  the  Bar  of  the  United 
States  Supreme  Court  and  argued  there  two  admiralty 
cases,  both  of  which  he  lost.^^ 

The  Maryland  reports  for  1826  show  fourteen  cases 
argued  by  Taney,  in  one  of  which  he  was  counsel  for  the 
Union  Bank.^^  One  of  the  other  cases,  that  of  Ringgold 
V.  Ringgold,  which  came  up  from  the  Cecil  County 
Court,  had  engaged  in  it  a  galaxy  of  seven  lawyers, 
three  associated  with  Taney  and  three  agaist  him, 
forming  a  most  remarkable  combination  of  talents.  The 
case  was  an  equitable  one,  dealing  with  the  relations  of 

Johnson;  472  Lemonier  v.  Godfroid,  Taney  and  Mayer  against  Mitchell  and 
Glenn;  475  Darne  v.  Gatlett,  Taney  and  B.  Forrest  against  Magruder;  501 
Lammot  v.  Bowly,  Williams,  Taney,  and  Harper  against  Reverdy  Johnson  and 
Wirt;  527  Cumberland  Bank  v.  McKinley,  Jones  and  Speed  against  Taney; 
529  Williams  v.  Mayor  of  Annapolis,  Magruder  and  Taney  against  Brewer, 
Mayer  and  Jones. 

27  Manro  v.  Almeida  10  Wheaton  473.  The  Gran  Para  (Consul  General  of 
Portugal,  Libellant)  10  Wheaton,  497.     (See  I  Story's  Story,  40.) 

28  Four  cases  arose  out  of  wills,  two  of  these  cases  being  concerned  with 
devises  of  realty,  one  case  dealt  with  letters  of  administration,  two  cases  were 
actions  of  assumpsit,  one  case  was  an  action  of  debt,  two  cases  arose  from 
mortgages  to  banks,  one  was  for  an  ejectment,  one  an  action  of  replevin  and 
two  were  suits  in  equity  concerning  land. 

7  H.  &  J.  55  Cromwell  v.  Owings,  Taney  and  Mayer  against  Reverdy 
Johnson;  73  James  v.  Lawrence,  Palmer  against  Taney  and  Gill — a  Frederick 
County  case;  92  Clopper  v.  Union  Bank,  Williams  and  Reverdy  Johnson 
against  Taney  and  Kennedy;  105  City  Bank  v.  Bateman,  Taney  and  Glenn 
against  Wirt  and  Reverdy  Johnson;  134,  Gist  v.  Cockey,  Heath  and  Reverdy 
Johnson  against  Scott  and  Taney;  141  Rogers  v.  Moore,  Magruder  against 
Taney  and  Rogers;  161  Chase  v.  McDonald,  Wirt,  Magruder,  and  Mayer 
against  Taney,  Moale  and  Reverdy  Johnson;  202  Parnell  and  Smith  v.  Far- 
mers Bank,  Taney  and  Gill  against  Magruder;  208,  Benson  v.  Masse ter — a 
Frederick  case — Reverdy  Johnson  and  Gill  v.  Taney;  320,  Kemp  v.  McPherson 
—a  Frederick  case — Palmer  and  Taney  against  Ross  and  Magruder;  345 
Dorsey  v.  Smith,  Charles  Dorsey,  Magruder,  and  Taney  against  Reverdy 
Johnson;  388  Semmes  v.  Semmes,  Stonestreet  and  Taney  against  C.  Dorsey 
and  Brawner;  1  H.  &  G.  9  Sewell  v.  Sewell— a  Calvert  County  Case — C. 
Dorsey  against  Boyle  and  Taney;  11  Ringgold  v.  Ringgold,  Wirt,  Jones, 
Taney  and  Magruder  against  Berrien,  Hoffman  and  Mayer. 


92  ROGER   BROOKE  TANEY 

trustee  of  land  to  the  cestui  que  trust  and  Tyler^^  is  quite 
correct  in  saying  that  the  relation,  *'in  every  respect  and 
every  phase  of  obligation  and  reciprocal  right  and  duty, 
under  the  most  varied  circumstances,  was  thoroughly 
discussed,  under  all  the  light  of  learning  belonging  to  the 
doctrine^o  of  trusts.  And  the  case  is  marked  by  the 
precision  with  which  the  controversy  and  the  relief  is 
kept  within  the  pleadings." 

In  1826,  Taney  pleaded  two  cases  before  the  United 
States  Supreme  Court.  One  of  these  was  a  most 
important  case  politically  rather  than  legally — that  of 
Solomon  Etting  v.  The  Bank  of  the  United  States.  In 
that  case  Taney  associated  Daniel  Webster  with  him  as 
counsel.  Judge  Story  was  considerably  impressed  by 
Taney's  argument  and  wrote  home  that  Taney  is  "a  man 
of  fine  Talents. "31  Attorney  General  Wirt  and  Emmet 
represented  the  Bank.  James  W.  McCullough,  had 
been  cashier  of  the  Baltimore  Branch  of  the  United 
States  Bank. 32  j^e  speculated  with  the  funds  of  the 
Bank,  and  together  with  his  partners  owed  the  institu- 
tion three  and  one  half  million  dollars.  McCullough 
received  a  salary  of  $4000  a  year  and  had  no  property. 
After  the  Bank  discovered  the  cashier's  misconduct,  but 
while  he  was  still  in  office  and  the  Bank  Directors  still 
kept  their  discovery  secret,  sixteen  merchants  of  Balti- 
more were  induced  to  become  bound  to  the  Bank  as  his 
security  to  the  sum  of  $12,500  each.  Then  Mr.  Mc- 
Cullough was  removed  by  the  Directors,  for  ''unauthor- 
ized and  fraudulent  appropriation  of  their  funds  to  his 

29  p.  162. 

2°  The  report  of  the  case  extends  from  page  1 1  to  page  86  of  1  H.  &  G. 

31  Etting  V.  U.  S.  Bank.  11  Wheaton  59,  I  Story's  ''Life  of  Story,"  p. 
541,  13  Md.  Hist.  Mag.  115. 

32  He  was  the  appellee  in  McCulloh  v.  Maryland,  his  name  being  spelled 
in  a  different  way. 


ROGER   BROOKE   TANEY  93 

own  use,"  which  knowledge  the  Bank  did  not  promul- 
gate, though  they  contemplated  McCullough's  removal, 
as  soon  as  the  securities  had  been  given.  When  demand 
for  payment  was  made  upon  Etting,  he  refused  it,  since 
he  had  endorsed  McCullough's  note,  without  knowing 
that  he  had  been  guilty  of  fraud,  or  abuse  of  office. 
Taney  lost  the  case,  but  the  revelations  made  in  the 
course  of  it  could  not  fail  to  confirm  him  in  his  hostility 
to  the  Bank  and  his  suspicions  of  the  institution.  We 
must  remember,  also,  that  during  all  this  time  Taney 
continued  to  be  counsel  and  director  of  the  rival  Union 
Bank,  whose  strong  minded  president  was  his  trusted 
friend.  Taney's  other  case  in  1826  was  that  of  Henry 
Carroll,  Administrator  of  Louisa  Browning,  v.  Charles 
Carroll  of  Carrollton,  which  involved  the  proprietary's 
quit-rents^^  In  this  case  Taney  was  employed  by  the  State 
of  Maryland  and  was  associated  with  Wirt.  After  the 
decision  was  rendered,  as  no  answer  came  from  the  State 
authorities  at  Annapolis  to  Wirt's  letter  informing  them 
of  the  decision  of  the  case,  Wirt  wrote  Taney  a  sprightly 
letter  on  March  30,  stating  he  had  not  spoken  of  fees, 
"which  I  thought  would  be  rather  unseemly  on  our  part 
(for  I  had  spoken  in  both  our  names)  toward  the  State 
of  Maryland,  our  liege  mother.  But  the  old  lady  is 
maintaining  a  rather  unnatural  silence  on  her  part;  for 
I  have  not  received  a  single  word  in  reply,  not  even  in 
the  form  of  thanks,  for  our  great  and  successful  exertions 
— for,  as  nobody  else  will  praise  us,  why  should  we  not 
praise  ourselves?" 

Taney  was  appointed  Attorney  General  of  Maryland 
in  1827.  In  that  year,  taking  Reverdy  Johnson  as  his 
junior   counsel,    he  argued  for  the  State  the  case  of 

33  11  Wheaton,  p.  135,  Tyler,  p.  163;  13  Md.  Hist.  Mag.  115,  I  Story's 
Story,  542. 


94  ROGER   BROOKE  TANEY 

Brown  v.  Baltimore  before  the  Supreme  Court,  having 
Meredith  and  Attorney  General  Wirt  against  him.  The 
State  of  Maryland  had  passed  a  law,  requiring  that  a 
man  who  sold  imported  goods  in  the  original  package 
must  take  out  a  State  license  and  the  Supreme  Court 
held  that  this  law  was  unconstitutional.  The  decision^* 
was  one  of  Marshall's  leading  ones  and  Taney,  though 
chagrined  at  the  time  by  defeat  in  a  cause  in  which  he 
believed,  later  confessed  that  he  had  been  wrong  in  his 
contentions  at  this  trial. ^^  At  the  same  term  he  was 
counsel  in  two  other  cases,  which  he  also  lost.  In  the 
United  States  v.  Gooding,  together  with  Mitchell,  he 
unsuccessfully  contended  for  the  defendant,  in  a  case 
involving  the  African  slave  trade,  against  Wirt  and 
Coxe.^^  In  Drummond  v.  Executors  of  Prestman,^'  to- 
gether with  Donaldson,  he  strove  in  vain  against  Wirt 
and  Meredith,  in  a  case  in  which  the  Court  decided  that  a 
judgment  against  a  principal  is  evidence  of  the  amount 
due  from  him  in  an  action  against  his  guarantor. 

In  the  Maryland  Court  of  Appeals  during  1827, 
Taney  was  counsel  in  eleven  cases.^^     In  a  case  in  which 

w  12  Wheaton,  p.  419.    I  Story's  Story,  542. 

^  Shown  by  his  statement  in  an  opinion  when  on  the  bench  in  the  License 
Cases,  5  Howard  504. 

3«  12  Wheaton,  p.  460. 

"  12  Wheaton,  p.  516. 

38  The  other  cases  related  to  covenant,  debt,  fire  insurance,  the  Statute 
of  limitations,  guardianshp,  an  ante-nuptial  settlement,  an  execution  under 
Zi  fieri  facias,  a  replevin  for  a  slave  (originally  brought  in  1816),  and  a  replevin 
for  a  vessel. 

1  H.  &  G.  175  Betts  v.  Union  Bank,  J.  Glenn  and  Taney  against  Reverdy 
Johnson;  204  Oliver  v.  Gray,  Latrobe  and  Taney  v.  Raymond  and  Gwynn; 
220  Drury  v.  Conner,  Taney  against  Brewer  and  Magruder;  231  Raborg  v. 
Bank  of  Columbia,  F.  S.  Key  against  Taney;  295  Jolly  v.  Baltimore  Equitable 
Society,  Williams  against  Wirt  and  Taney;  308,  McEldery  v.  Flannegan, 
Reverdy  Johnson  and  Taney  against  Wirt,  Meredith,  and  Evans;  324  Union 


ROGER   BROOKE   TANEY  95 

he  represented  the  Union  Bank,  he  showed  his  skill  as 
a  special  pleader.  One  case  in  which  he  opposed  Key, 
concerned  days  of  grace. 

The  case  of  Oliver  v.  Gray^^  was  an  important  one, 
setting  the  doctrine  of  the  law  in  regard  to  the  basis 
upon  what  a  suit  should  be  brought,  so  as  to  escape  the 
provisions  of  the  Statute  of  Limitations,  where  an 
acknowledgment  of  a  debt  had  been  made,  after  the 
period  of  limitation  had  occurred.  Tyler  correctly  states 
that  "the  very  comprehensive  and  elaborate  opinion  of 
the  Court  indicates,  by  its  accurate  analysis  of  the 
situation,  the  thoroughness  with  which  it  had  been  dis- 
cussed at  the  bar." 

Though  Taney  came  from  an  inland  town,  he  soon  so 
mastered  marine  law  and  the  law  of  marine  insurance 
that  he  was  later  to  become  a  great  admiralty  judge. 
He  was  employed  in  a  considerable  number  of  such 
cases'*^  and,  in  1828,  won  a  marine  insurance  case  in  the 
Supreme  Court — his  only  appearance  there  in  that  year. 
In  this  case  Meredith  was  with  him  and  Wirt  and  Ogden 
opposed  him.^i  He  argued  only  five  cases  that  year  in 
the  Court  of  Appeals.^^ 

Taney  argued  one  case    in    the   Supreme  Court    in 

Bank  v.  Ridgely,  Taney,  Reverdy  Johnson  and  Eichelberger,  against  Mitchell 
and  Kennedy;  434,  Thomas  v.  Turvey  (submitted  without  argument) ,  Stone- 
street  against  Taney,  Magruder,  and  C.  Dorsey;  444  Williamson  v.  Dillon, 
Scott  and  Taney  against  Meredith;  2  H.  &  G.  48.  Raborg  v.  Hammond,  Taney 
and  S.  J.  Donaldson  against  Meredith  and  Reverdy  Johnson;  63  Archer  v. 
Williamson,  Taney  and  Scott  against  Mitchell  and  Reverdy  Johnson. 

39  Tyler,  p.  165. 

<o  Tyler,  p.  166. 

*^  1  Peters  170,  McLanahan  v.  Universal  Ins.  Co. 

*2  One  of  these  was  a  criminal  appeal  from  a  verdict  declaring  a  man  guilty 
of  stealing  a  banknote,  and  the  others  were  an  action  in  replevin  dating  from 
1824,  a  case  of  a  widow's  dower  (instituted  in  1810),  a  question  about  a  chattel 
mortgage,  and  a  chancery  case  (instituted  in  1819)  involving  land. 


96  ROGER  BROOKE  TANEY 

1829,  that  of  LeGrand  v.  Darnell  ;^^  an  action  to  deter- 
mine whether  a  devise  of  land  by  a  man  to  his  slave,  by 
necessary  implication,  gives  the  slave  freedom.  Taney 
represented  a  man  who  wished  to  buy  the  estate  and 
lost  the  case. 

Ten  cases  were  argued  by  Taney  in  the  Court  of 
Appeals  in  1829.*^  In  two  of  these  cases,  he  appeared 
for  the  Union  Bank  and  in  one  for  the  State.  One  of 
these  causes  was  a  case  in  assumpsit,  arising  out  of  trade 
with  the  Baltic  in  1810,  and  another  concerned  a  more 
distant  trade  for  it  dealt  with  a  cargo  of  goods  in  Chile 
and  the  powers  of  ship  owners  and  of  the  ship  captain. 

In  1830,  Taney  appeared  in  one  case  in  the  Supreme 
Court  and  in  seventeen  in  the  Court  of  Appeals.  In 
his  Federal  Case,  which  he  lost,  it  was  established  that 
the  United  States  owns  the  streets  in  the  City  of  Wash- 
ington in  fee  simple  and  that  the  original  proprietors 

**  2  H.  &.  G.  321  Reeside  v.  Fischer,  Meredith  against  Taney;  390  Weems  v. 
Brewer,  Speed  and  Taney  against  Brewer  and  Magruder;  408,  State  v.  Cassell, 
Taney  and  Gill  for  State.  No  opposing  counsel;  415,  Hudson  v.  Warner, 
Taney  and  Mitchell  against  Winchester;  443  Maccubbin  v.  Cromwell,  Magru- 
der and  Taney  against  Mayer  and  Meredith. 

*•  Stewart  against  him.  2  Peters  664.  In  1829,  we  find  him  arranging  with 
Charles  Carroll  of  CarroUton  in  reference  to  changes  in  the  latter's  will.  13  Md. 
Hist.  Mag.  61.  Several  of  the  cases  were  chancery  ones,  concerning  obstruct- 
ing and  closing  a  road  in  Baltimore  County,  the  settlement  of  an  estate,  the 
partition  of  a  trust  estate,  a  mortgage,  and  the  deed  of  a  feme  covert.  Two 
cases  were  concerned  with  insolvent  debtors,  nuisances  were  the  subject  of  one 
suit.  1  G.  &  J.  1,  Pawson  v.  Donnell,  Williams  and  Taney  against  C.  C. 
Harper,  R.  B.  Magruder  and  Wirt;  152,  Wirgman  v.  Mactier,  Meredith  and 
Wirt  against  Taney  and  Scott;  184  Williamson  v.  Carnan,  Gwynn  against 
Magruder  and  Taney;  231,  Chamberlain  v.  State — a  Frederick  Case — Taney 
and  Ross  against  Pigman;  311  Danels  v.  Taggart,  Winchester  and  Wirt  against 
Mayer  and  Taney;  325,  Coale  v.  Barney,  Mayer  and  Taney  against  Winches- 
ter; 346,  Union  Bank  v.  Edwards,  Reverdy  Johnson  and  Williams  against 
Kennedy  and  Taney;  480,  Baltimore  City  v.  Hughes,  Taney  and  J.  Scott 
against  Reverdy  Johnson;  2  G.  &  J.  1,  Brundige  v.  Poor,  Moale  and  Williams 
against  Winchester  and  Taney;  73  Winchester  v.  Union  Bank,  Reverdy  John- 
son and  Raymond  against  Taney  and  Kennedy. 


ROGER   BROOKE  TANEY  97 

have  no  interest  therein.  In  this  suit,  Taney  was 
associated  with  Coxe,  against  the  brilHant  quartette  com- 
posed of  Walter  Jones,  Wirt,  Webster,  and  Berrien, 
the  Attorney  General. ^^  Of  the  cases  in  the  Court  of 
Appeals,^^  five  were  those  in  which  Taney  acted  as  the 
State's  representative:  against  the  manager  of  an  unau- 
thorized lottery,  against  one  who  had  failed  to  make 
proper  records  in  chancery,  against  a  man  charged  with 
assault  and  intent  to  murder,  against  an  insolvent,  and 
against  a  delinquent  tax  collector.  Two  cases  concerned 
the  insurance  on  a  cargo  of  mules  and  jackasses  placed  on 
a  brig  and  lost  in  a  storm,  one  was  a  case  of  trespass  on 
land,  two  were  chancery  cases  (one  of  them  concerning 
the  personal  property  of  a  decedent),  another  dealt  with 
a  judgment  against  an  executor,  and  still  another  with 
the  administration  of  an  estate.  A  promissory  note,  a 
writ  of  replevin,  the  statute  of  limitations,  the  char- 
tering of  a  vessel  for  a  voyage  to  the  West  Indies,  and 
the  question  as  to  whether  a  man  had  so  bound  himself 
by  contract  that  he  could  not  manage  an  opposition  line 

^  Van  Ness  v.  City  of  Washington,  4  Peters  232. 

**  2  G.  &  J.  137,  Allegre  v.  Md.  Ins.  Co.,  Mayer  and  Taney  against  Mere- 
dith and  Wirt;  164,  Chesapeake  Ins.  Co.  v.  Allegre,  Same  counsel;  193  Mundell 
V.  Perry,  Taney  and  Mundell  against  Stonestreet;  218,  Pennington  v.  Gittings, 
Winchester  and  Mayer  against  Taney  and  Heath;  235  Iglehart  v.  Mackubin, 
Magruder  and  Shaw  against  Taney  and  Brewer;  246,  State  v.  Scribner,  Taney 
and  Gill  against  Mitchell  and  Gwynn;  254  State  v.  Weyman,  Taney  and  Boyle 
against  Magruder  and  Brewer;  311  Purviance  v.  Barton,  Reverdy  Johnson 
against  Taney;  344,  Williamson  v.  Allen,  Scott  and  Taney  against  Meredith 
and  Raymond;  382,  David  v.  Barney,  Meredith  and  Taney  against  Reverdy 
Johnson  and  Williams;  407,  State  v.  Walsh,  Taney  and  Gill.  No  opposing  coun- 
sel; 431,  Karthaus  v.  Owings,  Mayer  against  Taney  and  Reverdy  Johnson; 
482,  Hamilton  v.  Warfield,  Gill  against  Taney;  493  Glenn  v.  Smith,  Taney 
and  Reverdy  Johnson  against  S.  J.  Donaldson  and  Belt;  3  G.  &  J.  8,  State 
V.  Dent,  Taney  and  Gill.  No  opposing  counsel;  12  McCormick  v.  Gibson, 
Taney  and  Scott.  No  opposing  counsel;  95  State  v.  ScharfiF,  Taney  and 
Gill.    No  opposing  counsel. 


98  ROGER   BROOKE  TANEY 

of  stages  from  Baltimore  to  Washington — these  were 
the  subjects  of  the  remaining  cases. 

In  1831,  he  was  appointed  as  Attorney  General  of  the 
United  States  and  resigned  his  position  as  Attorney 
General  of  Maryland  on  July  23.  In  that  year,  Taney 
argued  three  cases  in  the  Supreme  Court  and  six  in  the 
Court  of  Appeals.  In  the  latter  tribunal,  he  was  an 
attorney  in  an  ejectment  suit,  in  an  insurance  case,  in 
two  cases  concerning  trust  estates,  in  a  dispute  concern- 
ing a  lottery  ticket,  and  in  a  controversey  over  the  admin- 
istration of  an  estate.^^ 

In  the  Supreme  Court,  together  with  Scott,  he  argued 
against  Wirt  the  case  of  Tiernan  v.  Jackson^^  concerning 
the  rights  of  consignors  and  consignees  of  tobacco.  He 
appeared  with  Stewart  for  the  appellee  and  against 
Mayer  and  Wirt  in  the  Marine  Insurance  case  of  Pa- 
tapsco  Insurance  Co.  v.  Southgate'*^  and,  together  with 
Wirt,  he  argued  against  Mayer  and  Hoffman  in  the 
case  of  Sheppard  v.  Taylor^ ^  which  concerned  seamen's 
wages.  The  rights  of  twenty  of  the  sailors  had  been 
assigned  to  Jonathan  Meredith  for  the  Bank  of  the 
United  States  and  twenty-one  others  to  Thomas 
Ellicott  for  the  Union  Bank,  and  Taney  brought  into 
the  case  on  account  of  his  relation  to  that  Bank. 

With  Taney's  appointment  as  Attorney  General  of 
the  United  States  he  steps  into  the  field  of  national 

*'  3  G.  &  J.  142  Thomas  v.  Godfrey,  Reverdy  Johnson  against  Taney;  153 
Hoye  V.  Weaver,  Anderson  and  Taney  against  Price  and  Yost;  163,  Richard- 
son V.  Jones,  Speed  and  Reverdy  Johnson  against  Taney,  Gibbs  and  Alexander; 
205,  City  Bank  v.  Smith,  J.  I.  Donaldson  and  Taney  against  Reverdy  Johnson 
and  Mayer;  320,  Diffenderfer  v.  Winder,  Dulany  and  Taney  against  Reverdy 
Johnson;  450  Bosley  v.  Chesapeake  Ins.  Co.,  Mayer,  Reverdy  Johnson  and 
Taney  against  Glenn  and  Wirt. 

«  5  Peters  585. 

"  5  Peters  604. 

"5  Peters  675. 


ROGER   BROOKE  TANEY  99 

politics.  John  H.  B.  Latrobe  thus  describes  Taney  as 
he  appeared  at  this  time:^^  ''the  tall  spare  man  of  stooping 
form,  grave  and  quiet  bearing  and  gentle  mien,  who,  care- 
less of  graces  of  oratory,  appealed  to  court  or  jury  in 
language  so  simple  yet  so  clear  that  those  who  listened, 
almost  fancied  they  could  do  so  well  themselves,  so 
great  was  the  grand  lawyer's  faculty  of  statement  and 
argument." 

"  1  Md.  Hist.  Mag.  118. 


CHAPTER  VI 

Attorney  General  of  the  United  States  and  the 

Struggle  with  the  United  States  Bank 

(1831-1833) 

Andrew  Jackson  was  the  staunchest  of  friends  and  had 
towards  women  somewhat  of  the  chivalrous  feelings  of 
a  knight  errant,  so  that  when  some  of  the  wives  of  the 
members  of  his  cabinet  would  not  exchange  calls  with 
Mrs.  Eaton,  the  wife  of  the  Secretary  of  War,  the  Presi- 
dent dispensed  with  the  services  of  these  Secretaries. 
Among  those  whose  resignations  were  asked  was  John  M. 
Berrien,  the  Attorney  General,  a  friend  of  Calhoun.  To 
fill  the  vacancy,  Taney's  name  was  suggested  by  Dr. 
William  Jones  of  Washington,  who  was  a  native  of 
Montgomery  County  and,  as  early  as  June  14,  1831,  we 
find  that  Francis  Scott  Key^  had  been  actively  and  suc- 
cessfully at  work,  presenting  to  the  President  the  advisa- 
bility of  appointing  his  brother-in-law.^  On  June  14, 
Key  wrote  Taney  that  he  had  held  a  conference  with 
Berrien  and  told  him  that  Taney  "  thought  it  desirable 
to  the  party  that  he  should  continue  in  the  Cabinet." 
Berrien  asked  who  had  been  talked  of  as  a  successor  and 
Key  replied,  that  he  thought  Buchanan  was  "more  apt 
to  be  named"  than  any  other;  that  Taney  had  been 
mentioned,  but  that  Key  did  not  believe  the  appoint- 
ment would  be  offered  him.  Berrien  asked  whether 
Taney  would  take  it  and  Key  told  him  that  it  was  pos- 
sible Taney  might  do  so,  if  he  "saw  a  prospect  of  things 

1  Tyler,  p.  167. 

'  5  Md.  Hist.  Mag.  23  and  24.  The  second  letter  is  wrongly  dated  in  Md. 
Hist.  Mag. 

100 


ROGER  BROOKE  TANEY  101 

going  on  well."  Key  afterwards  saw  Edward  Living- 
ston and  told  him  that  he  had  talked  with  several  of  the 
President's  friends,  including  Taney,  on  the  subject  of 
continuing  Berrien  in  office.  Livingston  said  Taney  had 
"been  talked  of  for  the  place"  and  Key  replied  that 
Taney  had  heard  so,  but  would  prefer  Berrien's  being 
continued. 

On  Key's  return  to  his  home  in  Georgetown,  he  found 
a  letter  from  Jackson,  requesting  him  to  call  at  the 
White  House  and  he  went  at  once,  although  it  was  almost 
9  o'clock  in  the  evening.  Jackson  then  told  Key  that 
he  wished  to  offer  Taney  the  place  of  Attorney  General 
and  to  have  Key  ascertain  whether  the  offer  would  be 
acceptable  to  Taney.  Key  replied  that  he  knew  that 
Taney  preferred  Jackson's  continuing  Berrien  in  office. 
The  President  said,  at  once,  very  decisively,  that,  to  do 
this  "was  entirely  out  of  the  question";  whereupon 
Key  promised  to  write  Taney,  immediately,  and  obtain 
his  views.  He  thought  that  Taney  would,  probably, 
accept,  because  he  would  "feel  it  a  duty."  Jackson 
then  said,  as  Key  wrote  Taney,  "it  would  give  pleasure 
to  his  heart  to  understand  that  you  would — that  he 
would  feel  gratified  to  have  you  in  his  counsels,  that 
your  doctrines  upon  the  leading  constitutional  questions 
he  knew  to  be  sound  and  your  standing  in  the  Supreme 
Court  he  well  knew." 

Key  urged  Taney  to  reply  promptly  and  not  to  "have 
any  hesitation  in  accepting."     Key  continued 

I  believe  it  is  one  of  those  instances,  in  which  the  General 
has  acted  from  his  own  impulses  and  that  you  will  find  your- 
self, both  as  to  him  and  his  Cabinet,  acting  with  men  who 
know  and  value  you  and  with  whom  you  will  have  the  influ- 
ence you  ought  to  have  and  which  you  can  do  something  ef- 
ficient with.    As  to  your  business,  you  can  be  as  much  in  Balti- 


102  ROGER  BROOKE  TANEY 

more  as  you  would  find  necessary,  or  desirable,  with  the  under- 
standing that  you  were  to  come  over,  whenever  wanted.  This 
would  only  be,  when  you  were  wanted  at  a  meeting  of  the  Cabinet 
or  anything  important;  on  ordinary  occasions  and  applications 
for  opinions  from  the  Departments,  they  could  send  you  the 
papers  to  Baltimore  and  you  could  reply  from  there.  As  to  the 
Supreme  Court,  it  would,  of  course,  suit  you  entirely  and  the  in- 
crease in  your  business  there  would  make  up  well  for  lesser  matters. 

On  June  16,  Key  learned  that  Taney  had  agreed  to 
accept  the  position  when  tendered  him.  This  decision 
''much  gratified"  Jackson,  who  sent  word  to  Taney  by 
Key  that  the  Attorney  Generalship  need  not  interfere 
with  his  affairs  in  Baltimore  and  he  need  not  even  change 
his  residence,  if  he  did  not  wish^  it.  On  June  21,  1831, 
Jackson  appointed  Taney  to  the  vacant  position  and 
Edward  Livingston,  the  Secretary  of  State,  announced 
this  fact  to  Taney  on  the  same  day.^  Taney's  accept- 
ance is  dated  June  24,  but  some  little  time  was  needed 
for  him  to  arrange  affairs  in  Baltimore  and  in  the  Court 
of  Appeals  at  Annapolis  and  for  Berrien  to  arrange  the 
business  of  the  of^ce  in  Washington.  On  July  20,  there- 
fore, Taney  took  the  oath  of  office  as  Attorney  General 
and  continued  to  serve  as  such  for  a  little  over  two  years, 
until  he  was  transferred  to  the  Treasury  Department  on 
September  23,  1833.^  Before  he  qualified  in  office,  how- 
ever, Jackson's  full  confidence  in  him  was  shown,  in  a 
letter  written  at  the  President's  direction  to  Taney  by 
W.  T.  Barry,  the  Postmaster  General,  on  July  10.^  In 
this  letter  Barry  inquired,  confidentially,  if  Taney 
would  be  willing  to  permit  the  War  Department  also 

'  In  a  postscript  to  this  letter  Key  wrote  "There  is  a  son  of  Caldwell's  who 
is  Berrien's  clerk,  you  must  continue  him." 
*  Tyler,  p.  173.     13  Md.  Hist.  Mag.  162. 
6  M.  L.  Hinsdale's  "President's  Cabinet." 
«  13  Md.  Hist.  Mag.  164. 


ROGER  BROOKE  TANEY  103 

*'to  be  placed  under  his  control"  for  a  few  days,  until 
Governor  Lewis  Cass,  who  had  been  appointed  as 
Secretary  of  War,  should  arrive  in  Washington.  Taney 
replied  favorably  and  signalized  his  entry  into  the 
Cabinet  by  holding  two  portfolios;^  though  the  War 
one  was  not  arduous,  since  General  McComb,  the 
commander  of  the  army,  was  at  the  national  capital.^ 
It  was  felt  to  be  a  "notable  tribute  to  his  distinction  as 
lawyer  and  his  worth  as  a  private  gentleman  that  he  was 
called  by  President  Jackson  to  the  office  of  Attorney 
General  ....  when  he  was  known  to  belong  to 
the  constitutional  school  of  which  Chief  Justice  Mar- 
shall" was  a  most  eminent  member.^ 

From  the  very  first  days  of  his  incumbency  of  office, 
Taney's  influence  with  the  President  was  recognized. 
James  Buchanan  promptly  requested  Taney's  assist- 
ance in  securing  the  ministry  to  St.  Petersburg  and,  on 
August  2,  1831,  Taney  replied,  from  Washington,  to 
the  effect  that  he  had  already  waited  on  Livingston  in 
reference  to  the  matter.^^^  This  early  evidence  of  the 
friendship  of  the  two  men  is  interesting,  when  taken  in 
connection  with  Buchanan's  inaugural  address,  in  its 
relation  to  the  Dred  Scott  Case. 

Bassett  is  right  in  stating  that  Taney  soon  ranked  with 
Amos  Kendall,  Frank  P.  Blair,  and  Andrew  J.  Donelson 
as  one  of  the  most  influential  persons  withjjackson  and 

7  40  Niles  Register,  p.  361,  July  31, 1831. 

8  On  August  4,  1831  Taney  wrote  to  F.  Waters  Griffith,  in  Baltimore, 
declining  to  recommend  him  to  Livingston  for  a  position,  feeling  it  unwise  to 
interfere  in  the  arrangements  of  other  members  of  the  Cabinet. 

'J.  M.  Carlisle  in  Memorial  Meetmg  of  the  Bar  of  the  Supreme  Court 
December  6,  1864.    Tyler,  p.  490. 

1°  Taney  regretted  that  he  could  not  go  with  Buchanan  to  Saratoga  and 
told  the  latter  that  he  may  soon  meet  Livingston  in  New  York.  II  Curtis's 
Buchanan  133. 


104  ROGER  BROOKE  TANEY 

that  he  "gave  a  vigorous  mind,  with  a  vast  capacity  for 
work,  to  the  destruction"  of  the  United  States  Bank.^^ 
Contemporary  opinion  is  seen  in  the  gift  of  the  degree 
of  LL.D.  to  Taney  by  his  alma  mater,  Dickinson  College, 
that  summer^^  ^nd  by  the  comment  upon  him  made  by 
Hezekiah  Niles: 

His  gentlemanly  deportment,  honorable  private  character,  and 
acknowledged  talents  eminently  fit  him  for  the  place  to  which  he 
has  been  appointed.  He  has  always  been  an  ardent  and  decided 
politician — and  stood  at  the  head  of  the  Federal  party  in  Mary- 
land, so  long  as  our  political  divisions  were  formed  on  old  party 
grounds.  The  Richmond  Inquirer  says  of  Mr.  Taney:  "He  is 
a  lawyer  of  fine  talents  and  high  standing  at  the  bar  of  the  Supreme 
Court  and  as  a  politician,  he  is  a  warm  friend  of  the  Constitution 
of  the  United  States  in  its  true  reading.  He  will  carry  into  the 
Cabinet  vigorous  talents,  sound  constitutional  principles  and  the 
most  unblemished  reputation.  We  shall  hail  his  succession  to 
the  Cabinet,  as  a  solid  benefit  to  the  Country."^^ 

Niles  was  a  little  dubious  as  to  the  matter  and  added, 
"We  shall  see."  Up  to  that  time,  the  Attorney 
General  had  never  been  the  leading  politician  of  the 
Cabinet,  but  Taney  speedily  became  so  and  delighted 
the  Democrats,  who  had  been  doubtful  what  position 
he  would  take  upon  the  great  issue  of  the  day — the  re- 
charter  of  the  United  States  Bank.  Thus  Cambreleng 
wrote  Van  Buren,  on  January  4,  1832 ;i^  "Taney,  strange 
as  it  may  seem,  is  the  best  Democrat  among  us"  and,  a 
month  later, ^°  with  even  greater  enthusiasm,  he  wrote 
Van  Buren  again,  that  Taney  was  the  "only  efficient 
man  of  sound  principles  in  the  Cabinet." 

11  Bassett's  Jackson,  pp.  536,  540,  608,  Bassett  falls  into  the  usual  blunder 
of  calling  Taney  "a  resolute  State's  rghts  man,"  which  he  was  not. 

12  41  Niles  Register,  p.  154,  October  22, 1831. 

13  40  Register  305,  July  2,  1831. 
1^  Bassett's  Jackson,  p.  613. 

16  February  5,  1832,  Bassett's  Jackson,  p.  608. 


ROGER  BROOKE  TANEY  105 

On  the  issue  of  nullification,  he  stood  strongly  against 
the  rightfulness  of  the  South  Carolina  doctrine,  but  he 
was  in  Annapolis  attending  court,  when  the  famous 
nullification  proclamation  was  issued  by  the  President 
and  had  no  share  in  its  composition. ^^ 

Taney's  Federalist  antecedents  caused  him  to  support 
the  President  so  sincerely  in  his  policy  in  regard  to 
nullification  that,  as  late  as  the  time  of  Taney's  transfer 
to  the  Treasury  Department,  nearly  a  year  after  the 
issuance  of  Jackson's  proclamation.  Van  Buren  sent 
Taney  a  letter  of  introduction  for  Benjamin  F.  Butler, 
who  had  just  been  appointed  Attorney  General  and 
showed  in  that  letter  anxiety  lest  Taney's  influence 
should  spur  Jackson  on  to  measures  against  South 
Carolina,  which  should  appear  too  strong  to  Van  Buren. 
The  latter  wrote  that 

I  would  be  the  last  person^ ^  to  advise  to  the  omission  of  any 
act,  or  recommendation,  which  is  absolutely  necessary  to  the 
maintenance  of  the  Federal  Government  in  its  just  acts  only; 
but  I  am,  at  the  same  time,  anxious  that  those  acts  and  recommen- 
dations should  be  limited  by  most  necessity  and  that  all  high- 
toned  positions  should  be  avoided  as  far  as  possible. 

Taney  believed  that  Jackson's  policy  was  Federal  and 
supported  it  as  such;  but  he  also  believed  in  the  policy 
of  decentralization,  which  Jackson  urged,  especially  in 
money  matters.  Like  the  President,  he  was  a  bitter 
enemy  of  the  United  States  Bank.  This  hostility  had 
begun  in  his  experience,  while  he  was  counsel  for  Solomon 
Etting  against  the  Bank  and  had  been  greatly  increased 
through    his    connection    with    the    Union    Bank    of 

^^In  July  1861,  he  wrote  that  he  "should  have  objected  to  some  of  the 
principles  stated  in  it,  if  I  had  been  in  Washington,"  but  did  not  specify  his 
objections.    Tyler,  pp.  187,  189. 

1'  13  Md.  Hist.  Mag.  169. 


106  ROGER  BROOKE  TANEY 

Baltimore,  of  which  he  had  been  counsel  and  director 
and  in  which  he  was  still  a  considerable  stockholder. 
The  president  of  that  bank  was  Thomas  Ellicott,  a 
member  of  a  well-known  Baltimore  Quaker  family. 
He  and  Taney  became  ''close  friends,"  in  the  words  of 
J.  H.  B.  Latrobe.18 

That  eminent  lawyer  was  a  director  of  the  bank  from 
1832  until  1837,  when  both  he  and  Ellicott  lost  their 
positions  therein.  In  his  old  age,  Latrobe  spoke  of 
Ellicott  as  a  ''man  of  rare  qualities,  of  extraordinary 
intelligence,  and  as  fit  to  command  an  army,  as  to 
determine  questions  of  bank  policy."  He  swayed  the 
actions  of  the  other  members  of  the  board  of  directors. 
At  this  time,  he  was  about  fifty-five  years  of  age.^^  He 
was  six  feet  four  inches  tall,  dressed  in  the  garb  of  the 
Friends,  and  was  a  "great,  thin,  broadshouldered, 
person,  with  a  massive,  square  brow,  shadowing  deep 
sunk  eyes  that  lit  up  a  face,  whose  stern  determination" 
was  emphasized  by  the  "heavy  jaw  and  lightly  pressed 
lips,"  denoting  "firmness  and  iron  will."  His  compac- 
tion was  "pale  and  unhealthy."  He  was  a  frequent 
visitor  to  Taney's  house  and  there  Latrobe  saw  him 
more  than  once  and  "on  these  occasions,"  Latrobe 
recorded,  "I  know  the  financial  affairs  were  the  subject 
of  conversation." 

At  the  close  of  the  War  of  1812,  the  Second  Bank  of 
the  United  States  had  been  incorporated  and  given  a 
charter  for  twenty  years.  In  Jackson's  first  adminis- 
tration, he  showed  his  acute  hostility  to  the  Bank.  In 
spite  of  that  fact,  in  the  early  part  of  1832,  the  Bank 
petitioned  Congress  to  renew  its  charter  and  the  bill 
extending  the  Bank's  existence  for  a  further  period  of  fif- 

18  Semmes's  "Life  of  Latrobe,"  p.  400. 

19  Born  1777,  died  1859. 


ROGER  BROOKE  TANEY  107 

teen  years  passed  Congress  and  was  sent  to  Jackson  in 
June,  1832.  This  early  passage  of  the  new  charter  was, 
doubtless,  in  large  measure,  devised  by  Henry  Clay  and 
his  friends  to  aid  Clay's  candidacy  for  the  presidency. 
The  election  came  in  the  autumn  and  Clay  argued  that 
a  veto  would  be  unpopular  and  that  a  signature  of  the 
bill  would  be  an  abandonment  by  Jackson  of  his  prin- 
ciples. Either  action  by  Jackson  would  promote  Clay's 
election.  Taney's  opposition  to  the  Bank  had  long  been 
known.  On  December  7,  1831,  General  Samuel  Smith 
wrote  Nicholas  Biddle,  the  Bank's  President,  that 
Jackson  was  wavering  and  that  all  the  Cabinet  except 
Taney  were  favorable  to  the  Bank  and,  on  February 
13,  1832,  Charles  J.  Ingersoll  wrote  Biddle  to  the  same 
effect.2o 

All  the  Cabinet  except  Taney  advised  Jackson  to  sign 
the  bill.  Taney,  however,  wrote  Jackson,  on  June  27, 
from  Annapolis,  where  he  was  engaged  in  a  case  before 
the  Court  of  Appeals,  a  fifty-four  page  letter,  urging 
that  a  veto  message  be  sent.  Jackson  agreed  with 
Taney  and,  on  the  latter 's  return  to  Washington, 
employed  his  aid  in  preparing  the  message  vetoing 
the  bill. 

Taney's  Annapolis  letter  is  so  important  as  to  deserve 
careful  consideration.  He  maintained  that  the  bill  was 
unconstitutional  and  inexpedient  and  that  the  present 
Bank  was  unfit  to  receive  a  new  charter.  A  bank  "is  not 
one  of  the  substantive  ends  which  the  government  is 

20  R.  C.  H.  Catterall,  "Second  Bank  of  the  United  States,"  pp.  219,  226. 
Amos  Kendall  wrote  in  his  "Autobiography"  fp.  392)  that  almost  all  of  Jack- 
son's supporters  were  Taney,  Blair  (the  editor  of  the  Globe),  and  its  few  con- 
tributors. Wm.  G.  Sumner  believed  that  he  traced  the  removal  of  the  deposits 
to  Kendall  and  Blair  as  the  "moving  spirits,"  with  Reuben  M.  Whitney  as  a 
coadjutor  ("Life  of  Jackson,"  p.  297).  See  Nicholas  Biddle  Correspondence, 
p.  183. 


108  ROGER  BROOKE  TANEY 

authorized  to  attain  for  the  general  welfare  and,  if  it  can 
constitutionally  be  established,  it  must  be  on  the  ground 
that  it  is  among  the  means  which  Congress  are  permitted 
to  use  in  executing  the  powers,  specially  conferred  by 
the  Constitution."  Congress  ''can  use  those  means 
only  that  the  Constitution  has  in  express  terms  author- 
ized, that  is,  the  means  necessary  and  proper  to  obtain 
the  end."  This  necessity  need  not  be  absolute,  a  dis- 
cretion must  always  be  exercised;  for  it  is  "impossible 
to  draw  a  strict  line,"  yet  some  means  may  be  so  far 
beyond  that  line  that  the  fact  may  be  seen  without 
difficulty.  The  means  granted  must  be  "used,  imme- 
diately, and  directly  and  not  remotely  and  by  inference." 
The  power  to  create  carries  with  it  the  power  to  preserve. 
No  tribunal  can  declare  any  of  the  laws  void,  since 
"Only  the  legislature,  from  the  nature  of  the  case,  could 
decide  what  means  are  necessary  and  proper  to  obtain 
any  legislative  end."  A  Congress,  however,  cannot 
restrict  its  successors,  nor  can  it  give  away,  nor  sell  its 
rights.  The  United  States  Government  may,  within 
its  "field  of  action,  create  a  corporation ;"  but  may  alter 
the  charter  at  any  time  after  the  creation.  Such  a  cor- 
poration, chartered  by  Congress,  must  be  one  needed  as 
public  agent,  and,  therefore,  must  be  a  public,  not  a 
private,  corporation.  The  Supreme  Court,  in  the  case 
of  McCulloh  versus  Maryland,  merely  said  that  the 
Federal  Government  had  the  right  to  establish  proper 
agents  for  the  collection  and  application  of  the  revenues. 
Whether  the  Bank  is  constitutional  is  a  political  question 
— a  question  which  does  not  depend  on  the  powers  of 
Congress  "to  create  a  corporation,  but  on  the  powers, 
privileges,  and  immunities,  which  it  may  lawfully  confer 
upon  a  public  agent. "^i 

21  Tyler,  p.  151.    10  Md.  Hist.  Mag.  24. 


ROGER  BROOKE  TANEY  109 

If  Congress  should  create  a  Bank  for  that  purpose,  when  one  is 
not  necessary,  or  confer  on  it  peculiar  powers  and  privileges  to  be 
used  for  individual  emolument,  beyond  what  its  duty  as  a  fiscal 
agent  required,  yet  a  judicial  tribunal  could  not,  on  that  ground, 
pronounce  the  act  to  be  unconstitutional,  because  it  is  not  within 
the  province  of  judicial  power  to  enter  into  such  investigations. 

Congress  may  make  of  the  Bank  an  *' institution 
'appropriate'  for  the  collection  of  the  revenue,  or  the 
conveyance  of  it  from  place  to  place  for  public  purposes;" 
but  may  not,  "at  the  same  time,  give  it  a  capital  and 
clothe  it  with  powers  and  privileges,  which  are  not  neces- 
sary to  enable  it  to  discharge  its  duty  as  a  public  agent 
and  which  render  it  altogether  independent  of  the  public 
will  and  enable  a  great  monied  aristocracy  to  combine 
together,  and  by  concentrating  their  power,  to  exercise 
a  baneful  and  corrupt  influence  on  all  the  Departments 
of  the  Government."  Whether  such  action  *'be  called 
the  abuse  of  a  power  granted,  or  the  exercise  of  a  power 
not  granted,  it  would,  in  either  case,  be  a  violation  of  the 
Constitution."  A  Court  could  not  inquire  into  the 
"degree  of  necessity,"  and  there  "would  be  manifest 
usurpations  of  power,  beyond  the  reach  of  judicial  cor- 
rections." 

So  when  the  proposed  charter  was  brought  before 
Jackson,  in  his  "legislative  capacity,"  he  was  "called 
on  to  consider  whether  a  Bank,  with  the  powers  and 
privileges  contemplated  by  the  Charter,  is  necessary." 
The  degree  of  necessity  should  be  "the  more  severely 
scrutinized  by  the  Legislative  Branch  of  the  Govern- 
ment," since  the  Courts  cannot  give  this  scrutiny.  The 
proposed  charter  is  not  "justified  by  the  Constitution, 
because  it  confers  powers  and  privileges  not  necessary 
and  surrenders,  for  15  years,  part  of  the  legislative  power 
of  Congress,  of  which  Congress  cannot  divest  itself." 


110  ROGER  BROOKE  TANEY 

When  it  is  proposed  to  reduce  the  public  revenue  to 
16  million  dollars  annually,  a  capital  of  35  millions  is 
too  great  for  the  bank.  The  ^'excess  gives  an  excess  of 
power  not  justified  by  the  Constitution." 

Secondly,  it  is  not  right  for  the  Government  to  agree 
not  to  establish  another  bank  for  15  years,  since  the 
public  interest  may  require  another.  ''Great  monied 
aristocracies"  are  to  be  feared.  Taney  curiously  viti- 
ates this  part  of  his  argument,  by  adding  the  statement 
that  Congress  cannot  restrict  the  legislative  power  of 
its  successors. 

Thirdly,  it  is  not  necessary  to  permit  Branch  Banks 
to  be  established  in  every  State,  possibly  without  the 
consent  of  the  State.  The  Government  only,  and  not 
the  Corporation,  should  determine  where  the  agent  to 
convey  the  revenue  is  needed.  The  Bank  may  wish  to 
"establish  Branches,  merely  for  the  purposes  of  obtaining 
political  influence,  or  of  making  gainful  speculation  for 
private  profit,  in  places  not  required  by  the  duties  of 
their  agency  for  the  public."  To  permit  it  to  act  in  this 
manner  would  be  unconstitutional. 

Fourthly,  it  is  not  necessary  that  great  banking  powers 
be  given  to  the  "fiscal  agent."  The  large  bonus  offered 
by  the  Bank  for  the  charter  showed  that  the  Bank 
hoped  for  great  advantages,  "to  be  used  for  individual 
and  private  interest."  It  was  contrary  to  the  "spirit 
of  the  Constitution"  to  "sell  for  money  the  office  of 
conveying  the  revenues  from  place  to  place."  There 
should  be  "fair  compensation"  given  for  the  Bank's 
services  and  no  more. 

Fifthly,  it  was  an  "abuse  of  power  and  a  violation  of 
the  spirit  of  equality  to  select  by  name"  a  "favored 
body  of  individuals"  and  to  "give  them  high  and 
valuable    privileges,"    from    which    other    citizens    are 


ROGER  BROOKE  TANEY  111 

excluded."  If  an  individual,  for  example,  Nicholas 
Biddle,  the  Bank's  president,  should  be  constituted  the 
public  agent  and  given  all  these  privileges,  ''everyone 
would  be  shocked  at  such  a  flagrant  usurpation  of 
power."  No  one  would  think  that  Congress  could 
adopt  Biddle,  as  "their  only  partner,"  to  "convey 
public  moneys"  in  a  "great  banking  speculation." 
But,  if  Congress  cannot  do  this  in  favor  of  him,  or  of  any 
other  individual,  how  can  it  be  done  in  behalf  of  a  dozen 
individuals,  and,  if  not  for  a  small  number,  then  not  for 
500  or  a  1000?  Congress  can  not  "erect  among  us  a 
privileged  class  of  citizens,  who  are  allowed  to  monopo- 
lize advantages  which  are  denied  to  all  other  citizens 
of  the  United  States,"  yet,  in  this  bill,  exclusive  privi- 
leges were  granted  to  the  Bank's  stockholders  for  their 
"private  emolument."  If  these  privileges  may  be 
granted  for  15  years,  why  may  not  they  be  granted  in 
perpetuity  and  hereditarily?  The  bonus  is  a  sum  paid 
by  the  stockholders  for  the  charter  privileges  granted 
them  by  sale,  for  their  "private  and  individual  emolu- 
ment." "More  is  granted,  therefore,  than  the  public 
service  requires."  No  competition  is  allowed  for  the 
purchase  of  these  privileges  and  the  renewal  act  is, 
consequently,  unconstitutional. 

After  these  arguments,  it  is  startling  to  find  Taney 
continuing,  with  the  statement  that,  "in  examining  the 
Constitutional  questions,  it  will  be  seen  that  I  have  fol- 
lowed throughout  the  rule  which  I  understand  to  be 
given  by  the  Supreme  Court,  in  the  case  of  McCulloh 
versus  The  State  of  Maryland."  To  the  ordinary  reader 
the  two  lines  of  argument  are  contradictory.  Taney 
claims  they  are  supplementary  and  that  the  silence  of  the 
Court  on  other  matters  is  "the  strongest  evidence  that 
the  ground  taken  by  them  was,  in  their  opinion,  the 
only  one  that  could  be  defended." 


'^ 


112  ROGER  BROOKE  TANEY 

The  general  welfare  clause,  neither  "confers  any  new 
power  on  Congress,  nor  enlarges  any  before  given." 
"If  Congress  needs  more  power,  the  people  can  give  it, 
and  they  are  the  only  judges  competent  to  decide  whether 
it  is  proper  to  be  given." 

'  Such  is  Taney's  constitutional  argument — clever,  labo- 
rious, and  subtle,  but  specious,  abounding  in  logical 
fallacies  and  special  pleading, — we  should  call  it  dema- 
gogical, if  it  were  not  addressed  to  one  man.  The 
agreement  of  students  of  the  financial  history  of  the 
United  States  is  so  complete  that  Taney's  position  was 
unwise  and  that  his  legal  argument  is  unsatisfactory 
that  it  seems  unnecessary  to  give  a  full  statement  of 
reasons  against  his  position  here. 

Turning  to  the  question  of  expediency,  Taney  main- 
tained that  the  Charter,  even  if  constitutional,  should  be 
disapproved,  since  it  granted  powers  "so  vast  and  over- 
whelming, so  liable  to  abuse  and  so  intimately  connected 
with  the  prosperity  and  welfare  of  every  portion  of  the 
United  States,  and  indeed  of  every  citizen,  that  they 
ought  never  to  be  intrusted  to  an  irresponsible  corpora- 
tion, to  be  used  as  their  private  interests  may  dictate, 
regardless  of  the  injury  they  may  do  to  others."  The 
Bank  would  have  absolute  dominion  over  the  circulating 
medium  of  the  country  and  could  "throw  pressure  upon 
or  exempt  any  particular  place"  at  its  will:  could  "bring 
ruin  on  any  commercial  city."  Biddle  answered  yes, 
when  he  was  asked  by  General  Smith  whether  there  were 
"few  State  Banks  that  the  United  States  Bank  might 
not  have  broken,  if  it  had  been  disposed  to  do  so." 
The  Branches  of  the  United  States  Bank  are  subject  to 
the  "control  of  the  mother  bank"  and,  consequently,  the 
"mandate  issued  from  the  directors'  room  in  Philadel- 
phia may  be  felt  at  the  same  moment,  in  every  part  of 


ROGER  BROOKE  TANEY  113 

the  United  States  and  the  blow  it  inflicts  be  too  sudden 
and  unexpected  to  be  resisted  or  counteracted."     Why- 
did  this  "formidable  political  power,   working  through 
the  press,  seek  a  renewal  of  its  charter  so  early?     If  the 
scheme  be  defeated,  will  the  Bank  consider  the  failure 
final,  or  will  not  the  struggle  be  continued  during  the  four 
remaining  years  of  the  first  charter  and  the  two  subse- 
quent years  allowed  thereby  to  settle  the  Bank's  concerns, 
unless  it  can,  in  the  meantime  accomplish  its  object?" 
The  country  is  on  the  eve  of  a  Presidential  Election  and 
the  Bank  hopes  that  the  ''President  will  yield  up  the 
opinions  heretofore  expressed  by  him,  in  order  to  secure 
his   election.     And,    if   his    well    known    firmness    and 
independence  should  disappoint  their  wishes,  they  hope, 
by  combining  with  the  other  elements  of  opposition,  to 
defeat  his  re-election   and   secure   a   President  of  the 
United  States  who  is  favorable  to  their  views."     The 
present  session  of  Congress  has  shown  that  it  is  inex- 
pedient to  "combine  such  a  vast  amount  of  separate 
individual  interest  in  any  of  the  fiscal  operations  of  the 
government."     If  the  public  alone  were  concerned,  the 
question  could  be  settled  without  heat  and  excitement, 
but  individual  interests  enter  the  situation.     Biddle  has 
been  in  Washington,  working  for  the  Bank.     The  stock- 
holders have  no  rightful  claim  on  the  government,  for 
they  enjoy  all  their  privileges  during  the  term  of  the 
present  charter.     Taney  thought  it  a  simple  question 
"whether  another  agent  as  useful  and  less  dangerous, 
can  not  be  selected  to  carry  the  public  revenue  from 
place  to  place." 

The  renewal  of  the  charter  would  "give  this  influence 
such  a  power  that  the  Government  could  not  hereafter 
in  any  event,  change  its  policy."  After  15  years  more 
of  the  Bank,  its  President  would  "have  more  influence" 


114  ROGER  BROOKE  TANEY 

than  the  President  of  the  United  States.  "Congress 
could  not  govern  the  secret  conclave  in  the  directors* 
room;  but  would  be  in  danger  of  being  governed  by  it." 

This  part  of  Taney *s  argument  is  artful,  shrewd,  and 
adroit.  It  is  addressed  with  skill  to  Jackson,  but  it  is 
a  melancholy  proof  how  far  prejudice  and  antipathy 
can  carry  an  honest  man — for  we  must  never  forget  that 
Taney,  like  his  chief,  was  honest. 

Taney's  third  argument  appeared  to  him  to  be  suf- 
ficient of  itself  to  cause  a  veto  of  the  bill.  The  Bank 
was  to  pay  a  lump  sum  and  then  to  be  exempted  from 
other  taxation,  National  or  State.  The  sum  may  be  a 
*'fair  share  of  the  public  burden  upon  the  private  capital 
employed  in  the  Bank,"  according  "to  the  present  scale 
of  taxation;"  but,  in  the  next  nineteen  years,  the  situa- 
tion of  the  country  may  be  greatly  changed,  for  "heavy 
burthens"  may  become  necessary  through  war,  and  it 
"may  be  necessary  to  add  sorely  to  the  burthens  now 
borne  by  the  State  Banks."  "Why,"  asks  Taney, 
"should  not  the  28  millions  in  the  United  States  Bank 
bear  its  share  of  the  public  burthen  in  times  of  war 
and  distress?"  Landholders  and  stockholders  in  State 
Banks,  "who  are  generally  men  in  moderate  circum- 
stances," will  pay  taxes  and  why  should  the  United 
States  Bank,  whose  stock  "is  generally  held  by  the 
most  opulent  monied  men,  many  of  them  wealthy 
foreigners,  be  entirely  free  from  the  additional  taxation?" 
The  money  of  the  citizens,  employed  in  the  State  Banks, 
will  be  diminished  in  value,  while  "the  money  of  the 
opulent  citizens  and  of  the  wealthy  foreigners"  is  not 
to  be  "allowed  to  feel  the  pressure  which  bears  on  the 
rest  of  the  community."  No  other  "private  property 
in  all  the  United  States"  is  so  protected.  Of  course, 
the  government  property  in  the  Bank  should  be  freed 


ROGER  BROOKE  TANEY  115 

from  taxation;  but  the  property  of  individuals  in  the 
Bank  is  private  and  should  be  taxed.  Over  this  part  of 
the  argument,  one  sees  the  shadow  of  the  tall  form 
of  Thomas  Ellicott,  President  of  the  Union  Bank  of 
Baltimore. 

Finally,  the  present  corporation  should  not  have  a 
renewal  of  its  charter,  since:  (1)  other  citizens  ought 
to  have  an  equal  opportunity  of  obtaining  these  advan- 
tages; (2)  the  application  on  the  eve  of  a  Presidential 
election  shows  that  the  Bank  designs  ''to  influence  the 
public  servants  in  a  great  question  of  public  concern, 
by  exciting  their  fears  of  the  political  influence  of  this 
mighty  engine  of  power" — an  act  which  "should  re- 
ceive the  marked  disapprobation  of  the  constituted 
authorities;"  (3)  the  ''funds  of  the  Bank  have  been  freely 
used  for  the  purpose  of  obtaining  political  influence  and 
power,  and  those  who  have  been  responsible  for  this 
course  should  receive  no  "new  favor"  as  a  "sanction 
for  their  conduct." 

The  United  States  Bank  notes  were  a  "public  conve- 
nience" but  the  same  convenience  may  be  had  otherwise; 
for  it  is  the  "pledge  of  Congress  to  receive  these  notes  for 
public  dues  that  gives  them  their  universal  character 
and,  if  the  same  pledge  were  given  the  notes  of  the  most 
obscure  State  Bank,  its  notes  would,  immediately,  become 
equally  current  in  every  part  of  the  United  States." 
There  might  be  independent  banks,  each  with  a  moderate 
capital,  established  at  suitable  places,  "whose  notes, 
with  such  a  pledge,  would  be  made  current"  and  would 
be  equally  sound  and  general  with  those  of  the  United 
States  Bank ;  while  these  Banks  would  not  have  means  of 
exercising  the  "dangerous  and  corrupt  political  influence, 
with  which  the  present  mammoth  monopoly  is  able  to 
pervade  the  United  States."     These  banks  would  check 


116  ROGER  BROOKE  TANEY 

one  another  and  "prevent  sudden  and  extravagant 
increase  of  discounts  and  issues  of  paper,  which  the 
unchecked  power"  of  the  United  States  Bank  permitted. 
In  these  words,  we  behold  the  germ  of  the  "pet  bank" 
scheme. 

Taney  concluded  this  remarkable  document  with  the 
following  sentences;  "I  respectfully  advise  that  the 
proposed  bill  be  not  approved.  And  as  the  frank  and 
decided  course  which  has  marked  your  conduct  through 
your  whole  life,  is,  I  have  no  doubt,  not  only  the  right  one 
in  morals,  but  the  wisest  in  public  affairs,  I  think  the  pro- 
posed charter  ought  to  be  met,  on  every  ground  on  which 
you  may  deem  it  liable  to  objection."  Jackson^^  vetoed 
the  bill  to  recharter  the  Bank  and  long  afterwards^^ 
Taney  defended  this  action  in  a  letter  to  Van  Buren, 
which  is  of  considerable  interest,  because  the  writer  was 
at  the  time  of  writing  the  Chief  Justice  of  the  Supreme 
Court.  Jackson  "had  been  charged  with  asserting  that 
he,  as  an  executive  officer,  had  a  right  to  judge  for  him- 
self whether  an  act  of  Congress  was  constitutional  or 
not,  and  was  not  bound  to  carry  it  into  execution,  if 
he  believed  it  to  be  unconstitutional,  even  if  the 
Supreme  Court  decided  otherwise."  Taney  distinguished 
Jackson's  act  as  coming  out  of  "his  rights  and  his  duty, 
when  acting  as  a  part  of  the  legislative  power,  and  not 
of  his  right  or  duty,  as  an  executive  officer.  For,  when 
a  bill  is  presented  to  him  and  he  is  to  decide  whether, 
by  his  approval,  it  shall  become  a  law  or  not,  his  power 
or  duty  is  as  purely  legislative  as  that  of  a  member  of 
Congress,  when  he  is  called  on  to  vote  for,  or  against,  a 
bill.     If  he  has  firmly  made  up  his  mind  that  the  pro- 

22  Taney  read  and  approved  the  veto  message  before  it  was  sent  in.    10  Md. 
Hist.  Mag.  24. 

"  June  30, 1860, 10  Md.  Hist.  Mag.  23. 


ROGER  BROOKE  TANEY  117 

posed  law  is  not  within  the  powers  of  the  general  govern- 
ment, he  may,  and  he  ought,  to  vote  against  it,  notwith- 
standing an  opinion  to  the  contrary  has  been  pro- 
nounced by  the  Supreme  Court.  It  is  true  that  he  may, 
very  probably,  yield  up  his  preconceived  opinions,  in 
deference  to  that  of  the  court ;  because  it  is  the  tribunal 
especially  constituted  to  decide  the  question  in  all  cases 
wherein  it  may  arise  and,  from  its  organization  and 
character,  is  peculiarly  fitted  for  such  inquiries.  But  if 
a  member  of  Congress,  or  the  President,  when  acting  in 
his  legislative  capacity,  has,  upon  mature  consideration, 
made  up  his  mind  that  the  proposed  law  is  a  violation 
of  that  Constitution  he  has  sworn  to  support,  and  that 
the  Supreme  Court  had,  in  that  respect,  fallen  into  error, 
it  is  not  only  his  right,  but  his  duty,  to  refuse  to  aid  in 
the  passage  of  the  proposed  law."  Jackson's  position 
was  not  new,  for  every  Court  before  which  the  Sedition 
Act  was  brought  had  sustained  that  law,  until  a  "major- 
ity in  Congress  refused  to  continue  the  law,  avowedly 
upon  the  ground  that  they  believed  it  to  be  unconsti- 
tutional." "But  General  Jackson,"  Taney  continued, 
"never  expressed  doubt  as  to  the  duty  and  the  obliga- 
tions upon  him,  in  his  executive  character,  to  carry  into 
execution  any  act  of  Congress  regularly  passed,  what- 
ever his  own  opinion  might  be  of  the  constitutional 
question.  And,  at  the  time  this  veto  message  was 
written  and  sent,  he  was  carrying  into  execution  all  the 
provisions  of  the  existing  charter,  and  continued  to  do  so, 
until  it  expired.  And,  when  the  deposits  were  removed 
they  were  not  withdrawn  upon  the  ground  that  the 
charter  was  unconstitutional  and  void,  but,  expressly, 
upon  the  ground  that  it  was  still  in  force  and  would 
continue  to  be  so,  until  the  expiration  of  the  term 
limited  by  the  law  itself." 


118  ROGER  BROOKE  TANEY 

The  presidential  campaign  which  followed  Jackson's 
veto  of  the  recharter  was  fought  out  largely  on  the  issue 
of  the  continuance  of  the  Bank,  which  institution  entered 
with  great  energy  into  the  contest.  The  result  was  an 
overwhelming  victory  for  Jackson,  who  received  239 
out  of  288  electoral  votes.  Naturally,  he  took  this  as 
a  vote  of  approval  of  his  policy  as  to  the  Bank  and,  as 
Taney  had  been  his  chief  adviser  in  the  veto,  Jackson 
"relied  especially  on  the  faithfulness  and  the  sagacious 
statesmanship,"  of  the  Attorney  General,^^  to  use  Tyler's 
words. 

In  December,  1832,  Jackson  sent  his  first  message  to 
Congress  after  his  reelection  and  startled  the  country, 
by  intimating  that  there  was  some  question  as  to  the 
entire  safety  of  the  public  deposits  in  the  United  States 
Bank.  He  recommended  an  inquiry  into  the  "transac- 
tions of  the  institution,"  so  as  to  determine  whether  it 
would  be  "longer  a  safe  depository  of  the  money  of  the 
people."  He  also  recommended  the  sale  of  the  $7,000,000 
of  stock  in  the  Bank  held  by  the  United  States,  as  well 
as  all  stock  held  in  other  joint  stock  companies,  so  as  to 
sever  the  Government  from  all  private  corporations. 

The  House  of  Representatives  refused  to  appoint  a 
select  committee  to  inquire  into  the  condition  of  the 
Bank  and  referred  the  matter  to  the  Committee  of 
Ways  and  Means,  which  reported  that  it  was  safe  to 
continue  the  deposits  in  the  Bank.  The  report  was 
adopted  by  a  vote  of  100  to  46.  Latrobe  maintained 
that  the  removal  of  the  deposits  from  the  United  States 

**  Tyler,  p.  191.  On  p.  190,  Tyler  tells  a  contemporaneous  incident, 
illustrating  Taney's  kindness  of  heart.  While  going  to  his  office  on  a  cold 
morning,  he  saw  a  little  negro  girl  shivering  in  the  cold  wind  and  vainly  striving 
to  fill  a  tin  bucket  with  water  from  a  pump.  He  took  the  pump  handle  from 
her,  filled  the  bucket,  and,  placing  it  upon  her  head,  said:  "Tell  whoever  sent 
you  to  the  pump,  that  it  is  too  cold  a  morning  to  send  such  a  little  girl." 


ROGER  BROOKE  TANEY  119 

Bank  and  the  selection  of  State  Banks — the  so-called 
pet  banks — to  receive  these  deposits  were  *' promoted, 
if  not  originated,"  by  Thomas  Ellicott,  and  Latrobe's 
position  was  such  as  to  make  his  assertion  on  this  matter 
carry  much  weight.^^ 

On  March  12,  Jackson  had  an  interview  with  Taney 
on  the  subject  of  the  Bank.^^  Afterwards,  Jackson 
carefully  looked  into  the  Charter  of  the  Bank  of  the 
United  States  and  its  Reports.  That  night,  he  sat 
down  and  wrote  Taney  as  to  the  powers  of  the  President 
and  Secretary  of  Treasury  over  the  Bank.  The  former, 
he  concluded  had  "only  power  to  order  a  scire  facias  to 
repeal  its  charter,  when  the  facts  warrant  it."  The 
latter  had  ''the  sole  power"  to  ''manage  the  deposits," 
and  Jackson  asked  Taney  merely  for  a  written  opinion 
concerning  the  violation  of  the  charter,  as  "disclosed  in 
the  reports"  of  the  Ways  and  Means  Committee, 
leaving  the  Secretary  of  the  Treasury  to  "his  own 
deliberations  as  to  the  removal  of  the  deposits  and  where 
to  intrust  them."  Jackson  was  confirmed  in  his  "former 
opinion  of  the  incapacity  of  the  Bank  to  continue  specie 
payment  for  one  month,  after  it  meets  the  payment  of 
the  public  debt;"  but  found  that  "much  perplexity  will 
occur  in  finding  safe  deposits  for  the  public  funds." 
This  matter  must  be  "well  weighed"  and  Jackson  wished 
to  "see  and  converse"  with  Taney  thereupon. 

A  week  later,  Jackson^^  addressed  each  member  of 
the  cabinet  upon  the  subject  of  the  Bank,  requesting  a 
"free  discussion"  and  a  reply  in  writing.  He  told  them 
that  the  results  of  his  "own  reflections  were:  (1)  that 
the  charter  of  the  present  Bank  ought  not  to  be  renewed ; 

25  Semmes's  Latrobe,  p.  400. 

26  4  Md.  Hist.  Mag.  297. 
2'4Md.  Hist.  Mag.  298. 


120  ROGER  BROOKE  TANEY 

(2)  that  he  ought  not  to  assent  to  "any  bill  authorizing 
the  establishment  of  a  Bank  out  of  the  District  of 
Columbia;"  (3)  that  such  a  Bank  should  be  allowed  to 
establish  Branches  in  the  different  States,  only  with  their 
assent  and  "under  such  restrictions  as  the  several 
States  may  think  proper  to  impose,"  that  the  "Gov- 
ernment shall  have  the  right  to  appoint  the  President 
and  as  many  directors  ....  as  will  secure  fidel- 
ity and  a  thorough  knowledge  by  the  proper  officers  of 
the  Government  of  its  transactions,"  and  that  "Con- 
gress should  retain  the  right  to  repeal  or  modify  the 
charter,  from  time  to  time;"  (4)  that  such  an  institu- 
tion ought  not  to  be  recommended,  until  a  full  and  fair 
experiment  has  been  made  to  carry  on  the  fiscal  affairs 
of  the  Government  without  a  national  Bank  of  any 
description;  and  (5)  that  there  should  be  devised  "a 
system  for  the  deposit  and  distribution  of  the  public 
funds,  through  the  agency  of  the  State,  to  go  into 
operation"  at  a  suitable  future  time. 

After  the  report  of  the  Committee  on  Ways  and  Means 
had  been  adopted,  Taney  wrote  a  26  page  letter  to 
Jackson,  on  April  13,  1833,  upon  the  subject  of  the 
"deposites,"  as  he  always  spelled  the  word.  He  main- 
tained that  the  question  was  still  open,  since  the  judg- 
ment of  the  House  was  "influential,  not  controlling;" 
that  the  President  "must  act  by  the  dictates  of  his  own 
judgment;"  and  that  the  minority  report  against  the 
Bank  was  "correct."  The  ability  of  the  Bank  to  meet 
its  engagements  is  "not  really  the  only  point  of  inquiry," 
for  the  corporation^^  was  created  to  obtain  "a  safe  and 
useful   agent   for   the   Treasury    Department,    through 

28  Taney  loved  to  use  that  word,  as  if  it  contained  some  subtle  reflection 
against  the  bank.  Nicholas  Biddle  (Biddle  Correspondence,  p.  205)  "Taney 
is  for  immediate  withdrawal." 


ROGER  BROOKE  TANEY  121 

which  the  government  might  more  conveniently  collect 
and  distribute  the  revenue,  according  to  the  exigencies 
of  the  public  service."  Therefore,  it  must  apply  its 
funds  according  to  the  directions  of  the  Government.^^ 
The  money  was  not  deposited  for  the  benefit  of  the 
stockholders,  but  "for  the  safety  and  convenience  of  the 
Government."  Consequently,  the  Bank  must  show  not 
only  capacity,  but  also  fidelity,  and  must  not  ''hide 
studiously"  from  the  public  ''important  money  trans- 
actions." Taney  recalled  Jackson's  attention  to  the  fact 
that  the  Secretary  of  the  Treasury,  by  article  16  of  the 
Charter,  had  power  to  remove  the  deposits.  The 
doctrine  of  the  first  part  of  the  letter  was  novel  and 
strained,  imputing  to  the  Bank  limitations  never  before 
suggested. 

Taney's  second  head  was  that  the  conduct  of  the  Bank 
had  been  such  that  the  Government  could  no  longer 
rely  on  it,  as  the  "agent  for  carrying  into  effect  its  fiscal 
arrangements,"  and  that  "other  agents  should  he  forth- 
with provided.^'  The  Corporation  had  been  guilty  of 
"gross  and  palpable  violations  of  duty  to  the  public, 
in  matters  suf^ciently  important  to  justify  the  Executive 
in  withdrawing  from  them  its  confidence  and  placing  the 
money  of  the  United  States  in  the  hands  of  agents  more 
worthy  of  the  trust."  As  proofs  of  this  statement, 
Taney  alleged:  (a)  that  in  July,  1832,  the  government 
had  to  postpone  the  payment  of  $6,000,000  on  the  debt 
for  three  months,  although  the  Bank,  at  that  time,  had 
nine  millions  of  public  money  out  at  loan.  The  money 
was  a  deposit,  not  a  loan,  and  no  interest  was  paid,  nor 
any  consideration  given  for  it,  so  that  the  Bank  ought 
always  to  have  been  ready  to  repay  the  money  and  a 

2»  Taney,  like  most  writers  of  today,  habitually  omitted  any  qualifying 
adjective,  such  as  Federal  or  National. 


122  ROGER  BROOKE  TANEY 

failure  so  to  do  at  once  was  a  "gross  abuse."  (b)  That 
the  great  increase  of  loans  in  1831  showed  ''unjustifiable 
overtrading."  The  loans  increased  50  per  cent  in  1831 
and  $7,000,000  more  were  loaned  between  January 
and  June,  1832,  while  the  recharter  bill  was  pending. 
*' Charity  itself  cannot  suggest  a  justifiable  inducement 
for  the  flood  of  Bank  accommodation."  (c)  The  conduct 
of  the  Bank,  in  regard  to  the  3  per  cent  stocks,  was  enough 
to  condemn  it,  for  the  Government  Directors  were  not 
told  of  the  transaction,  (d)  The  money  of  the  cor- 
poration had  been  employed  to  influence  the  press — a 
course  of  conduct  "pregnant  with  so  much  evil  that  it 
cannot  be  too  severely  and  pointedly  reprobated." 

Next  Taney  maintained  that,  since  the  Bank  had 
"profusely  lavished  its  money  to  obtain  political  power" 
in  the  Presidential  election,  i.e.,  to  defeat  Jackson,  he 
ought  not  to  assent  to  a  renewal  of  the  Charter  under 
any  circumstances,  or  with  any  modifications,  "even  if 
the  constitutional  objections  could  be  surmounted." 

Fourthly,  the  Bank  was  not  constitutional,  if  the 
"fiscal  operations"  of  the  Government  could  be  "carried 
on  without  it  and  a  full  and  fair  experiment  ought  to  be 
made  to  prove  this."  A  Bank  would  always  be  the 
"point  upon  which  the  monied  aristocracy  would  con- 
centrate its  power." 

In  the  fifth  place,  Taney  considered  what  system 
should  be  adopted.  "The  one  you  suggest,"  though  we 
fear  that  the  suggestion  was  really  made  by  Taney 
to  Jackson  and  not  vice  versa, — the  "State  Banks, 
judiciously  selected  and  arranged,"  will  furnish  a  "cur- 
rency, as  wholesome  and  stable  as  that  of  the  United 
States  Bank."  Jackson  may  well  proceed  to  select  these 
banks  and  make  arrangements  with  them  and  may  then 
discontinue  deposits  in  the  Bank  of  the  United  States, 


ROGER  BROOKE  TANEY  123 

making  a  report  to  Congress,  after  he  had  done  so.  A 
"fierce  and  desperate  struggle"  will  be  made  by  the 
Bank;  but  the  "purity  of  our  institutions  and  the  best 
interests  of  our  country  call  for  prompt  action  and  deci- 
sive measures  on  the  part  of  the  Executive."  He  may 
"rely  for  support  on  the  intelligence  and  patriotism  of  the 
people."  Another  letter,  upon  the  same  subject,  cover- 
ing 15  pages,  was  written  by  Taney  to  Jackson  on  April 
27.  The  suggested  plan  had  difficulties,  in  that  the 
Bank  of  the  United  States,  through  its  immense  capital 
and  many  Branches,  would  oppose  the  State  Banks, 
"derange  the  currency,  and  promote  individual  dis- 
tress." Taney  took  a  high  moral  tone  and  said  that, 
"if  the  Bank  has  this  power,  the  United  States  ought  not 
to  expect  them  to  use  it."  He  asks:  "Can  a  corpora- 
tion which  has  received  so  many  favors  and  so  much 
indulgence  from  government  forget  the  moral,  legal, 
and  political  duties  and  injure  the  community  it  was 
created  to  serve?"  I  hate  to  say  it  of  a  man,  who  was 
in  many  respects  admirable,  but  this  question  inevitably 
reminds  one  of  Mr.  Pecksniff's  utterances. 

The  prevailing  impression  that  the  Bank  will  do  harm 
is  an  "abundant  proof,  that  the  Corporation  has,  by  its 
conduct,  forfeited  the  confidence  and  esteem  of  the 
people."  The  Government  must  not  count  on  the  for- 
bearance of  the  Bank.  If  the  Bank  has  such  power,  it 
is  "dangerous  to  the  liberties  of  the  country  and  ought 
not  longer  to  be  tolerated."  Even  if  the  deposits  are 
withdrawn,  the  Bank  must  still  give  facilities  for  trans- 
ferring the  funds  of  the  United  States  from  place  to  place 
and  that  institution  will  remain  at  the  mercy  of  the 
Government,  for  the  removal  of  the  deposits  will  not 
change  the  Charter.  The  fourteenth  section  of  the 
Charter   stated    that   the   Government   would    receive 


124  ROGER  BROOKE  TANEY 

United  States  Bank  notes  in  payment  of  dues  to  the 
United  States,  unless  Congress  voted  otherwise.  This 
^'valuable  privilege"  was  a  consideration  for  the  transfer 
of  funds,  which  was  an  obligation  of  the  Bank  under 
section  fifteen  of  the  Charter.  Indeed,  how  could  the 
Government  receive  United  States  Bank  notes  at  New 
York  for  the  New  Orleans  Branch,  unless  the  Bank 
agreed  to  the  transfer  of  Government  Funds? 

Such  arguments  had  much  effect  in  stimulating, 
directing,  and  strengthening  Jackson's  purpose  to  injure 
the  Bank. 

In  June,  1833,  Edward  Livingston  relinquished  the 
Secretaryship  of  State  to  become  minister  to  France. 
Two  months  later,  on  board  the  ship  Delaware,  he  wrote 
Taney^^  to  thank  him  for  a  farewell  letter  and  spoke  in 
words  charged  with  much  feeling,  of  Taney's  acquain- 
tance, as  "among  the  most  pleasing"  recollections  of 
his  cabinet  career,  and  of  his  "high  gratification"  that 
he  left  a  "favorable  impression  on  the  mind  of  one  so 
well  qualified  to  judge." 

McLane,  who  did  not  favor  the  plan  of  removing  the 
deposits,  was  transferred  from  the  Department  of  the 
Treasury  to  that  of  State  and  his  place  was  filled  by 
William  J.  Duane,  a  Philadelphia  lawyer. 

On  March  3,  1860,  Taney  wrote  Van  Buren,  that^^ 
Andrew  Stevenson,   Frank   P.   Blair,   and  William   B. 

50  13  Md.  Hist.  Mag.  162.'" 

'^  10  Md.  Hist.  Mag.  14.  Van  Buren  in  his  Autobiography  (American 
Hist.  Association  Report,  1918,  vol.  II,  p.  596,  597)  states  that  in  November 
1832,  Jackson  was  already  considering  changing  Taney  from  the  Attorney 
Generalship  and  that  on  the  26th.  of  that  month  McLane  wrote  Van  Buren 
that  the  appointment  of  B.  F.  Butler  as  Attorney  General  would  satisfy  him 
and  that  he  would  be  better  satisfied  could  Taney  go  abroad — which  suggests 
that  he  may  have  been  considered  for  an  appointment  as  a  foreign  minister. 
Van  Buren  replied  to  McLane  (p.  598)  that  "I  had  thought  of  suggesting  the 
propriety  of  bringing  Mr.  Butler  into  the  office  of  Attorney  General,  if  Mr.  Taney 


ROGER  BROOKE  TANEY  125 

Lewis  asked  his  consent  to  present  his  name  to  Jackson 
for  the  Treasury  Department  when  McLane  retired; 
but  that  he  refused,  saying  that  "it  was  one  of  the  last 
offices  in  the  government  that  I  would  willingly  take." 
Jackson  ''never  mentioned  the  subject  of  the  vacancy 
in  the  Cabinet"  in  Taney's  hearing,  which  "unusual 
reserve  on  his  part  rather  annoyed"  Taney,  as  was 
natural.  When  Stevenson  finally  told  Taney  that  Duane 
was  to  be  appointed,  Taney  was  much  surprised  and 
wrote  that  he  "never  could  understand  by  what  influence 
the  President  was  so  much  misled  as  to  appoint  Mr. 
Duane,"  though  he  supposed  the  suggestion  came  from 
McLane,  who  was  rather  friendly  to  the  Bank. 

Some  years  after  Duane's  removal  from  office  he 
printed  a  volume  entitled  "Narrative  and  Correspon- 
dence concerning  the  Removal  of  the  Deposites  and 
Occurrences  Connected  therewith, "^^  i^i  which  book  he 
stated  that  he  had  been  invited  to  become  Secretary  of 
the  Treasury  on  December  4,  1832,  and  had  accepted 
the  invitation  on  January  30.  In  view  of  these  facts,  it 
is  not  surprising  that  Jackson  kept  silence  as  to  his 
plans.     Duane  was  commissioned  on  May  29  and  took 

could  be  provided  for  in  a  manner  more  acceptable  to  himself. "  In  September 
1833,  Van  Buren  (pp.  593  and  605)  told  Jackson  that  he  had  thought  of  Taney 
for  the  Treasury,  but  had  not  spoken  of  it,  because  McLane  objected  and 
determined  to  bring  in  Duane.  Taney  and  McLane  were  rather  unfriendly,  as 
early  as  August  11, 1831,  when  the  latter  wrote  Van  Buren:  "You  must  not 
ascribe  it  to  suspicion,  when  I  assure  you  that  Mr.  Ta.ney  fights  shy  of  me.  He 
was  the  only  one  of  the  Cabinet  who  kept  off  and  him  I  did  not  see,  until  we 
met  yesterday  at  the  President's  in  council.  We  were  always  on  good  terms  and 
I  know  of  no  cause  of  separation  now,  but  his  fears  on  a  certain  subject." 

In  later  years,  when  Van  Buren  was  President  he  came  to  Baltimore  to 
attend  the  funeral  of  General  Samuel  Smith.  McLane  and  Taney  were  also 
present  and  Taney  said,  after  the  services,  to  Van  Buren,  "I  saw  that  you  and 
your  old  friend  McLane  did  not  recognize  each  other;  certainly,  no  advance 
in  that  direction  could  be  expected  from  you"  (p.  613). 

32  Philadelphia,  1838. 


126  ROGER  BROOKE  TANEY 

office  on  the  following  day.  On  June  1,  Reuben  M. 
Whitney,  at  Jackson's  request,  called  to  say  that  the 
President  was  about  to  cause  the  removal  of  the  deposits, 
that  Taney  and  William  T.  Barry,  the  Postmaster 
General,  had  come  out  like  men  for  the  measure,  McLane 
and  Cass  were  against  it  and  Woodbury  was  vacillating. 
Duane  could  not  conceal  his  mortification  at  this  "at- 
tempt to  reduce  him  to  a  mere  cipher"  and  resolved  he 
would  act  according  to  his  own  judgment. 

He  was  known  to  be  opposed  to  the  Bank,  but  he 
showed  himself  also  opposed  to  the  removal  of  the 
deposits  and  to  the  employment  of  "State  Banks  as 
fiscal  agents  of  the  Government  to  receive  and  disburse 
the  revenue."  Jackson  wrote  him  from  Boston  on 
June  26,  to  the  effect  that  he  thought  it  desirable  to 
appoint  a  "discreet  agent  to  inquire  into  the  practica- 
bility of  making  such  an  arrangement  with  the  State 
Banks,"  but  Duane  was  disinclined  to  do  this — and 
wished  to  leave  the  matter  to  Congressional  action,  at 
the  session  which  would  begin  in  the  following  December. 
Jackson  was  not  willing  to  wait.  He  went  to  the 
Ripraps  off  Old  Point  Comfort,  to  enjoy  a  summer 
vacation.  On  the  morning  of  his  departure,  he  dis- 
cussed the  Bank's  affairs  with  Taney.  Taney  could  not 
await  his  return,  before  renewing  his  urgency  for  the 
removal  of  the  deposits.  Accordingly,  from  Washington 
on  August  5,   he  wrote  Jackson, ^^  to  state   "without 

»  Tyler,  p.  195.  Wm.  G.  Sumner,  in  his  "Life  of  Jackson,"  p.  301,  calls 
this  a  "sycophantic  letter"  and  states  that  the  removal  of  the  deposits  was 
unwise  and  unnecessary,  as  the  charter  would  soon  expire.  D.  R.  Dewey 
"Financial  History  of  the  United  States"  speaks  of  Taney's  able  support  and 
counsel  to  Jackson,  p.  205.  Van  Buren  in  his  Autobiography  (Am.  Hist. 
Ass.  Report,  1918,  vol.  11,  p.  657)  states  that  Jackson  decided  in  substance,  to 
remove  the  deposits  three  months  before  Taney  came  into  the  treasury.  This 
period,  assigned  from  memory,  is  too  long. 


ROGER  BROOKE  TANEY  127 

reserve"  his  opinion  on  the  present  condition  of  affairs 
in  relation  to  the  Bank.  In  his  previous  "official 
letters,"  Taney  had  urged  that  the  deposits  be  placed 
in  the  State  Banks  and  he  was  anxious  that  this  measure 
be  adopted  before  Congress  assemble,  so  that  the 
members  might  "be  among  their  constituents,"  when  the 
decision  was  announced  and  might  bring  with  them, 
when  they  come  to  Washington,  "the  feelings  and  senti- 
ments of  the  people;"  for  Taney  relied,  "at  all  times, 
with  confidence,  on  the  intelligence  and  virtue  of  the 
people  of  the  United  States."  The  obstacles,  which  had 
arisen,  made  the  course  a  harder  one  to  pursue,,  but  did 
not  change  Taney's  mind  in  regard  to  it.  "The  con- 
tinued existence  of  that  powerful  and  corrupting  monop- 
oly," Taney  wrote,  "will  be  fatal  to  the  liberties  of  the 
people"  and  he  believed  "no  man  but  yourself  is  strong 
enough  to  meet  and  destroy  it."  Such  flattery  pleased 
Jackson,  even  when  accompanied  by  such  overdrawn 
statements  as  that,  if  Jackson  did  not  remove  the  depos- 
its, the  Bank  will  be  too  strong  for  his  successor. 
Taney  was  sincere,  but  somewhat  hysterical,  when  he 
promised  to  "hazard  much,  in  order  to  save  the  people 
of  this  country  from  the  shackles  which  a  combined 
monled  aristocracy  is  seeking  to  fasten  upon  them." 
He  "should  be  deeply  mortified.  If,  after  so  many 
splendid  victories,  civil  and  military,"  Jackson  should, 
in  the  last  term  of  his  public  life,  meet  with  defeat. 
With  skilful  art,  Taney  continued  his  argument.  Jackson 
had  spent  a  life  of  so  many  hazards  in  the  public  service, 
and  Taney  had  "doubted  whether  your  friends,  or  the 
country,  have  a  right  to  ask  you  to  bear  the  brunt  of 
such  a  conflict."  If  Jackson  had  any  doubts,  he  might 
await  Coftgressional  action;  but  Taney's  "own  opinion 
is  firm  in  favor  of  the  removal,  as  soon  as  the  proper 


128  ROGER  BROOKE  TANEY 

arrangements  can  be  made."  Modestly,  Taney  added 
that  he  had  ''far  more  confidence"  in  Jackson's  decision 
than  in  his  own,  and  would  acquiesce,  if  Jackson  should 
determine  not  to  act.  Taney  would,  ''promptly  and 
willingly,"  render  any  service  in  his  power,  and  though 
he  should  regret  any  change  in  the  Cabinet  and  neither 
desired,  not  felt  qualified  to  fill  the  chair  of  Secretary  of 
the  Treasury,  as  Jackson  had  suggested,  he  should  not 
shrink  from  the  responsibility,  if,  in  Jackson's  opinion, 
the  "public  exigency  requires  me  to  undertake  it." 

Jackson  did  not  take  long  to  reply  to  this  letter,  but 
sent  his  answer  from  the  Ripraps  on  August  11.  The 
epistle^'^  is  a  long  one,  filled  with  accusations  against  the 
Bank,  but  the  gist  of  it  is  contained  in  the  first  four 
paragraphs.  Jackson  had  "perused  with  much  pleas- 
ure" Taney's  letter  and  was  "still  of  opinion  that  the 
public  deposits  ought  to.be  removed,  provided  a  more 
safe  depository,  and  as  convenient  for  carrying  on  the 
fiscal  operations  of  the  Government,  can  be  found  in 
the  State  Banks,  as  is  now  found,  in  the  United  States 
Bank."  It  is,  therefore,  manifest  that  Jackson  had  not 
yet  been  entirely  converted  to  Taney's  State  Bank  plan. 

Jackson  goes  on  to  declare  that 

The  United  States  Bank  attempts  to  overawe  us.  It  threatens 
us  with  the  Senate  and  with  Congress,  if  we  remove  the  deposits. 
As  to  the  Senate,  threats  of  their  power  cannot  control  my  course, 
or  defeat  my  operations.  I  am  regardless  of  its  threats  of  re- 
jecting my  nominations.  If  Mr.  Duane  withdraws,  you  can, 
under  an  agency,  carry  on  and  superintend  the  Treasury  Depart- 
ment until  nearly  the  close  of  the  next  Session  of  Congress,  before 
which  the  battle  must  be  fought  and  all  things  settled,  before  your 
nomination  would  be  sent  in. 

w  Tyler,  p.  198.    4  Md.  Hist.  Mag.  300. 


ROGER  BROOKE  TANEY  129 

Thus  he  forecast  the  actual  course  of  events  and  he 
was  serene.  ''As  to  the  threats  about  Congress,  it  may 
be  observed,  the  bank  having  been  chartered  contrary 
to  the  powers  of  Congress  as  defined  by  the  Constitution, 
may  find,  when  once  the  deposits  are  removed  for  cause, 
that  Congress  is  not  competent  to  order  the  deposits  to 
be  restored  to  this  unconstitutional  and  corrupt  deposi- 
tory, but  must  find  another,  and  that  can  only  be  the 
State  banks;  there  is  no  other:  more  of  this  when  we 
meet."  Taney's  heart  must  have  bounded  with  joy 
when  he  read  this  sentence,  for  it  showed  that  but  little 
more  urging  was  necessary  to  cause  Jackson  to  adopt 
the  State  Bank  plan. 

Bassett  writes^^  Taney's  "mental  acumen  can  not  be 
denied  "  and  his  pertinacity  was  equally  marked.  When 
Jackson  returned  from  the  Ripraps,  Taney  had  further 
private  conferences  with  him,  as  a  result  of  which  at 
Jackson's  written  request,  made  on  September  15, 
Taney  prepared  a  paper  on  the  change  of  deposits,  a 
step  which  Jackson  had  at  last  agreed  to  take.  Jackson 
grimly  wrote  that,  if  ''Duane  will  not  agree  to  carry 
into  effect  these  conclusions  and  remain,  the  sooner  he 
withdraws,  the  better."*^ 

On  September  17,  Taney  had  the  paper  ready  and 
transmitted  it  to  Jackson,  who  adopted  it  as  his  own.^^ 
On  the  same  day,  Taney  also  wrote  Jackson,  asking  him 

35  "Life  of  Jackson,"  p.  647. 

36  McMaster's  "History  of  United  States,"  VI,  189. 

3^  On  November  30,  1833,  John  Quincy  Adams  wrote  in  his  Diary,  vol. 
10,  p.  41 :  that  he  heard  that  Van  Buren  said  that  "Taney's  exposition  of  the 
reasons  for  removing  the  deposits  was  the  greatest  State  paper  that  had  been 
produced  since  the  existence  of  the  Federal  Government."  Adams  dryly 
added  "If  Van  Buren  said  so,  it  must  have  been  because  he  wrote  it,  or  a 
great  part  of  it,  himself."  Thorpe  "Statesmanship  of  Jackson"  writes,  p.  260, 
that,  "read  in  connection  with  the  history  of  the  times,"  the  order  to  remove 
the  deposits  "is  seen  to  be  a  State  paper  of  vast  importance." 


130  ROGER  BROOKE  TANEY 

to  name  the  day  for  changing  the  deposits.  He  would 
be  ready  on  October  1,  and  added  "I  am  fully  prepared 
to  go  with  you  firmly  through  this  business  and  to  meet 
all  its  consequences."  Jackson  endorsed  on  this  letter 
"to  be  held  with  my  private  papers,  as  evidence  of  his 
virtue,  energy,  and  worth." 

On  the  following  day,  the  paper  was  read  to  the  Cabi- 
net, announcing  the  change  of  system  and  fixing  on 
October  1,  as  the  day  when  it  should  go  into  effect. 
After  the  paper  was  read,  and  was  being  printed  in  the 
Globe,  the  Government  newspaper,  William  B.  Lewis 
was  concerned  lest  Cass  and  McLane,  who  were  not  so 
rabidly  opposed  to  the  Bank  as  the  rest  of  the  Cabinet, 
would  resign,  rather  than  be  responsible  for  the  removal 
of  the  deposits.  He  spoke  of  his  fears  to  Frank  P. 
Blair,  the  editor  of  the  Globe  and  Blair,  thereupon, 
showed  the  paper  to  Jackson,  and  told  him  what  Lewis 
had  said.  Jackson  promptly  replied  that  he  did  not 
want  anyone  to  be  responsible  for  his  acts  and  asked  to 
have  the  paper  read  to  him,  which  being  done,  he  inserted 
a  sentence  assuming  the  sole  responsibility.  Blair  then 
read  the  corrected  copy  to  Taney  who  was  puzzled,  when 
he  heard  the  inserted  sentence.  On  being  told  the 
authorship  of  it,  he  replied  it  would  be  better  that  Cass 
and  McLane  "should  leave  the  Cabinet  than  remain  in 
it  with  feelings  of  hostility  to  so  cardinal  a  measure, 
that  it  was  better  to  encounter  their  hostility  out  of  the 
Cabinet  than  in  it."^^ 

38  Tyler,  p.  204.  Blair's  account,  in  a  letter  written  to  Van  Buren  on 
November  13,  1859,  is  that  Jackson  at  the  Ripraps  dictated  the  original  of  the 
paper,  which  was  revised  by  Taney,  so  as  to  give  it  "a  calm  jud'cial  aspect, 
instead  of  that  of  a  combative  Bulletin"  (Van  Buren's  Autobiography,  Am. 
Hist.  Ass.  Rep.,  1918,  vol.  II,  p.  607).  When  Blair  took  the  printed  paper  to 
Taney's  house,  Donelson  was  present.  Taney  put  a  "segar  in  his  mouth  and 
his  feet  upon  the  writing  table,"  he  "prepared  to  enjoy  his  first  State  paper  in 


ROGER  BROOKE  TANEY  131 

Taney's  apprehensions  were  groundless,  however,  for 
both  of  the  Secretaries  just  named  supported  the 
President  henceforth. ^^  Macdonald^^  ably  discusses  this 
paper  and  the  situation  which  it  created.  The  paper, 
in  his  opinion,  was  the  "most  explicit  statement  we  have 
of  Jackson's  theory  regarding  the  status  and  function 
of  a  cabinet  officer  in  our  constitutional  system.  In  his 
view,  the  head  of  a  department  is  the  agent,  through 
whom  the  President  acts  in  matters  relating  to  that 
department.  As  such,  he  may  properly  hold  and  express 
an  independent  opinion  on  any  questions  regarding 
which  his  advice  is  sought.  The  President,  however, 
is  the  responsible  head  of  the  administration  and  the 
acts  of  the  cabinet  are  his  acts.  In  the  event,  accord- 
ingly, of  an  irreconcilable  difference  of  opinion  between 
the  President  and  his  Cabinet,  the  will  of  the  President 
must  prevail  and,  if  the  Cabinet  officer  cannot  submit, 
he  should  resign  and  may  be  removed.  The  fact  that 
the  Secretary  of  the  Treasury  was  required  by  law  to 
report  to  Congress,  instead  of  to  the  President,  did  not, 
in  Jackson's  opinion,  exempt  him  from  the  obligation 
to  support  the  President  in  matters  of  public  policy. 
Whatever  the  circumstances  of  this  particular  case  may 
have  been,  the  doctrine  was  sound  constitutional  law 
and  is  neither  dictatorial  nor  imperialistic.  How  far  the 
thing  was  originally  Jackson's  own  cannot  be  deter- 
mined.    Taney  was,   undoubtedly,  Jackson's  principal 

print."  He  said  to  Donelson:  "Now,  Mr.  Secretary,  let  us  hear  how  it  reads 
for  the  public."  When  Donelson  came  to  the  responsibility  passage,  Taney 
interrupted  him,  saying:  "How  under  heaven  did  that  get  in?"  Blair  told 
him  and  Taney  replied  "This  has  saved  Cass  and  McLane.  But  for  it,  they 
would  have  gone  out  and  been  ruined, — as  it  is  they  will  remain  and  do  us 
much  mischief." 

39  See  10  Md.  Hist.  Mag.  16  for  Taney's  distrust  of  McLane. 

*°  "  Jacksonian  Democracy"  in  American  Nation  Series,  pp.  227-236. 


132  ROGER  BROOKE  TANEY 

adviser  at  this  time,  but  the  President's  adoption  of 
Taney's  statement  of  it  made  it  his  own."  With  this 
summing  up  of  the  case,  the  verdict  of  history  has  agreed 
as  it  has  also  agreed  with  Macdonald's  further  conclusion 
that,  "in  directing  the  removal  of  the  deposits,  Jackson 
undoubtedly  acted  within  his  naked  rights  as  executive 
head  of  the  Government,  though  for  the  action,  from  any 
other  point  of  view,  there  can  be  little  save  condem- 
nation." 

On  the  next  day,^^  Jackson  wrote  Van  Buren:  "Mr. 
Taney  is  a  sterling  man.  You  would  have  been  de- 
lighted with  him,  had  you  been  present."  Ten  days 
later,  he  wrote  again,  "Mr  Taney  is  a  host.  His 
energy,  combined  with  his  clear  views,  will  enable  him 
to  carry  into  effect  the  change"  in  the  deposits.  Duane 
refused  to  execute  this  order  or  to  resign,  and,  on  the 
23rd  of  September,  Jackson  removed  him  from  office 
and  bluntly  wrote  Taney:  "Having  informed  William  J. 
Duane,  Esq.,  this  morning  that  I  have  no  further  use  for 
his  services  as  Secretary  of  the  Treasury  of  the  United 
States,  I  hereby  appoint  you  Secretary  in  his  stead,  and 
hope  you  will  accept  the  same  and  enter  upon  the  duties 
thereof  henceforth,  so  that  no  injury  may  accrue  to 
the  public  service.  "^^  Taney's  acceptance  has  not  been 
found;  but,  on  the  succeeding  day,  he  entered  upon  the 
duties  of  the  office. 

Taney's  first  appearance  before  the  Supreme  Court  as 
Attorney  General  occurred  on  January  7,  1832,  and  he 
appeared  at  two  terms  of  that  Court  in  thirty-one  cases, 
while  holding  that  office.  Of  these  cases,  eight  were  in 
his  private  practice^^  and  some  of  these  cases  were  impor- 

*'  10  Md.  Hist.  Mag.  15. 
*2  Tyler,  p.  205,  4  Md.  Hist.  Mag.  302. 

^  (1)  Oliver  v.  Alexander,  6  Peters  143,  Action  of  Case.    Hoffman  against 
Wirt  and  Taney;  (2)  Conard  v.  Pacific  Insurance  Co.,  6  Peters  262,  Taney 


ROGER  BROOKE  TANEY  133 

tant  ones.  His  incessant  industry  is  shown  by  his 
large  practice  at  this  time.  On  February  10,  1833, 
Mr.  Justice  Story  wrote  Judge  Fay^^  of  hearing  "fine 
arguments  from  Attorney  General  Taney." 

Taney's  official  opinions  occupy  nearly  100  pages  of 
the  first  volume  of  the  Opinions  of  the  Attorney 
General. ^^     They  cover  all  sorts  of  cases.^^    Some  dia- 

against  Ogden  and  Sergeant;  (3)  Gassico  v.  Ballon.  6  Peters,  760 — averment  of 
citizenship — Taney  against  Key;  (4)  Strother  v.  Lucas,  6  Peters  763,  Taney 
and  Benton  against  Wirt;  (5)  Douglass  v.  Reynolds,  7  Peters  113 — a  guarantee 
case — ^Jones  against  Taney,  (6)  Barron  v.  Baltimore  7  Peters  263.  Mayer 
against  Taney  and  Scott — stopped  by  the  Court — The  Fifth  Amendment  to 
the  Federal  Constitution  limits  the  United  States  not  the  State;  (7)  Living- 
ston's Lessee  v,  Moore  7  Peters  469, — ejectment — IngersoU  and  Taney  against 
Binney  and  Sergeant;  (8)  Scholefield  v.  Eichelberger  7  Peters  586,— illegal 
contract  during  the  War  of  1812,  Donaldson  and  Taney  against  Reverdy  John- 
son and  Magruder. 

« II  Story's  Story  122. 

*  Pp.  777-868.  Berrien's  last  opinion  is  dated  April  2  and  Taney's  first 
July  28,  1831.    His  last  is  dated  September  20,  1833 

^  Criminal  cases  constituted  4  of  those  argued  for  the  National  Govern- 
ment: two  of  which  were  for  robberies  of  the  mail  (U.  S.  v.  Mills,  7  Peters 
164  and  U.  S.  v.  Wilson,  7  Peters  150),  and  two  for  forgery  (U.  S.  v.  Brewster 
7  Peters  164,  U.  S.  v.  Abel  Turner,  7  Peters  132).  In  one  of  the  latter  cases  it 
was  decided  that,  under  the  Charter  of  the  Bank  of  the  United  States,  a  person 
purporting  to  issue  a  false  bill  is  liable  to  indictment,  if  the  persons  whose  signa- 
tures were  forged,  were  not  in  the  Bank  as  officers.  Taney  lost  the  case  of 
Tobias  Watkins,  who  charged  that  he  had  suffered  illegal  imprisonment 
(7  Peters  568.  Brent  and  Coxe  were  opposing  counsel) .  Two  cases  involved  the 
seizure  of  sugar  imported  (Barlow  v.  U.  S.  7  Peters  404.  Morton  and  Ogden 
were  against  Taney,  U.  S.  v.  84  Boxes  of  Sugar,  7  Peters  453.  Mayer  was 
opposing  counsel).    Official  bonds  were  involved  in  three  cases  (Cox  v.  U.  S. 

6  Peters  172.  Bond  of  a  Naval  Agent  in  Louisiana.  Johnston  was  opposing 
counsel  and  won.  Ex  parte  Davenport,  6  Peters  661,  Mandamus  in  suit  on 
custom  house  bond.    Taney  defeated  Hall  as  counsel.    Duncan  v.  U.  S., 

7  Peters  435.  IngersoU  was  against  Taney.  Bond  of  a  paymaster).  Claims 
of  officers  for  payment  for  services  were  the  subjects  of  three  cases  (U.  S.  v. 
McDaniel,  7  Peters  1,  Department  Clerk,  Taney  against  Coxe  and  Jones; 
U.  S.  V.  Ripley,  7  Peters  18,  Military  Officer;  U.  S.  v.  Fillebrown,  7  Peters  28, 
Secretary  of  a  Navy  Board,  Taney  against  Coxe  and  Jones).  There  was  one 
action  of  account  (Du  Bourg  v.  U.  S.,  7  Peters  625.  Livingston  was  opposing 
counsel  and  won),  while  one  case  involved  the  priority  of  the  United  States  in 


134  ROGER  BROOKE  TANEY 

monds  had  been  stolen  from  the  Princess  of  Orange  and 
brought  to  this  country.  Taney  held  that,  as  we  had 
no  extradition  treaty  with  Holland,  the  President  would 
not  be  justified  in  surrendering  the  alleged  criminal;^' 
that  the  custody  of  the  jewels  lay  in  the  United  States 
Court  and  not  in  the  Collector,  although  the  latter 
might  hold  them  physically  as  the  Court's  servant;'*^ 
that  these  jewels,  brought  to  the  United  States  without 
the  consent  of  the  owner^^  stand  upon  the  same  footing 
as  property  cast  upon  our  shores  by  violence  of  wind  and 
waves  and  are  entitled  to  the  same  protection.  There 
was  sufficient  evidence  that  the  jewels  belonged  to  the 
Princess  and  they  should  be  delivered  to  her,  while  they 
were  not  liable  to  condemnation. ^"^  Courts  receive  con- 
trol over  property  seized  by  a  collector,  only  when  a 
libel  is  brought  against  it^^  and  when  the  prosecution  is 

the  payment  of  debts  (U.  S.  v.  State  Bank  of  North  Carolina,  6  Peters  29. 
Taney  against  Peters)  and  in  2  cases  questions  of  procedure  (U.  S.  v.  Nourse, 

6  Peters  470.  Coxe  and  Sergeant  defeat  Swann  and  Taney  on  a  question  of 
appeals)  or  of  jurisdiction  (Sampeyreau  v.  U.  S.,  7  Peters  222.  Prentiss  and 
White  opposed  Fulton  and  Taney,  Powers  of  a  court  in  Arkansas,  U.  S.  v. 
McDaniel,  6  Peters  634.  Coxe  opposed  Taney)  were  considered.  Claims  for 
land  in  Florida  caused  two  cases  (U.  S.  v.  Arredondo,  6  Peters  691.  Call 
Wirt  and  Taney  against  White,  Berrien  and  Webster,  U    S.  v.  Bucheman, 

7  Peters  51,  Taney  opposed  to  White),  while  the  forfeiture  of  a  vessel  during 
the  war  of  1812  (Jones  and  Sergeant  were  against  Taney  and  won  McLane 
V.  U.  S.  6  Peters  404),  and  a  question  of  neutrality  caused  two  more  (U.  S. 
V.  Reyburn,  6  Peters  352.  Wirt  and  Williams,  District  Attorney  for  Maryland, 
lost  to  McMahon  and  Gleem.     Taney  was  not  of  counsel). 

*^  Page  778,  so  in  a  case  of  a  man  claimed  as  a  criminal  by  Portugal  p.  849. 

«  Page  794. 

"  Page  798. 

^°  The  President  should  act  not  under  the  power  to  grant  reprieves,  but  under 
that  to  see  that  the  laws  were  faithfully  executed.  He  had  the  right  to  dis- 
continue a  suit,  brought  in  the  name  of  the  United  States,  by  giving  orders  to  the 
District  Attorney,  as  an  attorney  might  discontinue  a  suit  for  a  client.  The 
District  Attorneys  were  wholly  different  from  the  courts,  which  were  independ- 
ent of  the  Executive. 

"  Page  807. 


ROGER  BROOKE  TANEY  135 

discontinued,  the  Collector  is  again  legally  entitled  to 
keep  the  property. ^^ 

Taney  said  that  the  Attorney  General  had  no  duty  to 
give  opinions  except  in  cases  defined  by  the  laws*^^  and 
he  held  that  he  ought  not  to  mark  out  the  limits  of  the 
legislative  power,  nor  to  express  an  opinion  as  to  whether 
Congress  had  power  to  review  a  sentence  of  a  Court 
Martial.  On  the  vexed  question  of  the  power  of  Con- 
gress over  treaties,  however,  he  took  high  ground  and 
held^*  that,  by  treaty  with  Spain,  the  Department  of 
State  was  the  depository  for  certain  records  and  these 
must  not  be  delivered  to  claimants,  in  spite  of  a  law  of 
Congress  violating  the  treaty  and  authorizing  such 
delivery. 

The  minister  to  Spain  was  not  legally  allowed  to 
charge  for  office  rent  though  equitably  entitled  to  it.^^ 
The  United  States  ought  to  make  good  damages  and 
costs  incurred,  through  fault  of  the  Government,  by 
the  charg6  d'affaires  to  Peru  from  the  nonacceptance  of 
a  bill  of  exchange  drawn  by  him.^^  These  two  decisions 
clearly  show  the  niggardly  policy  of  the  United  States 
in  foreign  affairs. 

The  Patent  Office  was  then  under  the  Department  of 
State  and  Taney  held  that  the  office  acted  ministerially 
rather  than  judicially,  since  the  rights  secured  by  letters 
patent  were  subjects  of  judicial  and  not  of  executive 
decision.^^ 

^2  The  Court  might  be  moved  to  order  the  marshal  to  deliver  the  jewels 
to  the  Dutch  minister. 

w  Page  830. 

"  Page  819. 

^  Page  778. 

w  Page  813. 

"  Page  779.  Other  opinions  as  to  Patents  are  found  on  pp.  857  and  858  and 
on  p.  817,  where  Taney  held  that  an  applicant  for  a  patent  must  prove  citi- 
zenship and  residence  in  the  United  States  for  two  years. 


136  ROGER  BROOKE  TANEY 

An  Interesting  question  decided  by  Taney ^^  Involved 
the  right  of  property  of  a  British  master  in  slaves  placed 
on  board  vessels  trading  to  the  United  States.  He 
held  that  the  right  depended  upon  the  laws  of  the  State, 
where  the  slaves  were  found.  If  they  claim  freedom  in 
a  free  State,  the  United  States  were  under  no  obligation 
to  return  them,  especially  since  Great  Britain  does  not 
recognize  the  possibility  of  slavery  In  her  territory  and, 
therefore,  no  question  of  mutuality  Is  Involved,  nor  does 
the  treaty  between  the  two  countries  speak  of  slavery 
expressly.  He  thought  that,  probably,  the  United 
States  could  not,  In  any  case,  by  treaty,  control  the 
several  States  In  the  exercise  of  the  power  to  free  slaves. ^^ 

"  Page  793. 

^•The  Treasury  Department  was  told  that  it  was  not  the  proper  forum 
(p.  781)  for  relief  to  a  surety  on  a  bond  (in  an  opinion  to  the  Department  of 
State,  p.  810,  Taney  held  that  the  bond  of  a  marshal  must  be  executed  with  a 
new  commission)  who  had  paid  money  to  the  United  States;  but  that,  as  the 
matter  was  one  of  chancery,  it  belonged  to  the  Courts.  Insolvent  debtors  were 
the  subjects  of  several  opinions  (pp.  777,  782,  when  a  debtor  was  discharged, 
the  Federal  Government  was  not  liable  for  the  marshal's  fees,  p.  845).  Other 
opinions  given  to  the  Treasury  Department  concerned  the  commutation  of 
pay  of  Revolutionary  oj66cers  of  the  Virginia  line  (p.  847)  and  held  that  the 
President  had  no  power  (p.  867)  to  order  sale  of  a  square  in  New  Orleans 
(see  U.  S.  V.  Tingey,  5  Peters  127). 

Taney  doubted  the  power  of  a  Secretary  of  War  to  review  his  predecessor's 
opinion  (p.  785)  and  held  that  an  accounting  officer  may  allow  interest  on  a 
claim.  Lapse  of  time,  though  strong  presumptive  evidence  against  the  justice 
of  a  claim,  is  no  absolute  bar  to  its  payment.  Bounty  land  for  soldiers  of  the 
War  of  1812  (pp.  789,  810,  813,  833,  863),  pensions  to  invalid  soldiers  (pension 
to  indigent  person  to  be  withdrawn  when  he  has  acquired  enough  property  to 
support  him,  p.  795,  811;  President  may  exclude  a  civil  officer  from  the  list  of 
invalid  pensioners,  822;  persons  serving  on  privateers  were  not  included  in  the 
pension  Jaw,  vide  pp.  820,  836,  855,  856),  payment  of  the  militia  of  Missouri, 
Illinois  and  Michigan  when  called  out  to  serve  against  the  Indians  (pp.  834, 
841),  compensation  for  horses  lost  in  the  service  (p.  857),  the  pay  of  the  Chief  of 
the  Engineer  Corps  (p.  850),  a  payment  under  the  Ottawa  treaty  (p.  851), 
title  to  the  Pottawatomie  Reservation  (p.  868,  his  last  opinion)  were  among  the 
subjects  on  which  Taney  gave  opinions  to  the  Secretary  of  War  (Taney  held 
that  a  law,  directing  an  account  to  be  reopened  for  a  specific  purpose  should  be 


ROGER  BROOKE  TANEY  137 

The  Norfolk  Drawbridge  Company,  without  the  con- 
sent of  the  legislature  of  Virginia,  had  no  power  to  execute 
a  contract  to  the  United  States  so  as  to  surrender  its 
rights  to  the  bridge  and  the  road  leading  thereto,  ^^  nor 
could  it  otherwise  extinguish  the  rights  of  the  public 
therein.  "An  act  of  incorporation  of  this  description 
can  never  be  considered  as  having  been  granted  for  the 
exclusive  benefit  of  the  corporators.  Certain  privileges 
are  given  to  them,  in  order  to  obtain  a  public  con- 
venience, and  the  interest  of  the  public  must,  I  presume, 
always  be  regarded  as  the  main  object  of  every  charter 
for  a  toll  bridge,  or  a  turnpike  road.  The  exclusive 
privileges  are  not  given  to  the  corporators,  merely  for 
individual  emolument,  or  from  favoritism,  but  are 
granted  as  a  compensation  for  the  public  convenience, 
derived  or  expected  to  be  derived,  from  the  work  done 
by  them  and  are  offered  in  the  charter  as  inducements  to 
individuals  to  undertake  it.     And  this  must  especially 

strictly  construed,  p.  820,  and  that  payment  for  building  material  at  Fort 
Monroe  could  not  be  made,  until  the  contracts  had  been  deposited  with  the 
Comptroller  and  the  accounts  adjusted  in  the  Treasury).  The  Army  might 
remove  by  force,  on  direction  of  the  President,  intruders  from  the  Creek  reserva- 
tion, whether  or  not  it  lie  within  a  State  (p.  860.  An  opinion  given  the  Com- 
missioners of  the  Land  Office  determined  questions  concerning  land  claimed  by 
the  Miamies  and  concerning  the  treaty  with  that  tribe  of  Indians). 

Though  the  sum  involved  were  small,  Taney  gave  the  subject  attention, 
if  the  principle  were  important,  and  held  that,  when  a  contract  had  been 
made  for  the  return  of  a  discharged  seaman  who  only  came  part  way  back;  the 
Captain  could  only  recover  for  the  distance  the  seaman  returned  (p.  788). 
Among  minor  opinions  given  the  Navy  Department  are  these:  holding  that 
the  oaths  (p.  783)  of  members  of  Courts  Martial  need  to  be  taken  only  once  (on 
the  number  composing  Courts  Martial,  p.  832),  concerning  proceedings  to 
punish  the  cutting  of  live  oak  (p.  805),  treating  of  the  duties  and  positions  of  the 
Board  of  Navy  Commissioners  (p.  811),  and  deciding  that  a  widow  can  not  be 
compelled  to  refund  moneys  erroneously  paid  her,  since  she  is  not  a  debtor  to 
the  publiC;  for  what  she  may  have  erroneously  received  under  decisions  of  the 
tribunals  established  to  decide  on  her  rights  (pp.  831,  838,  840,  on  a  disabled 
officer's  pensions,  p.  842 .    Widows'  pensions  are  not  to  be  paid  after  remarriage) . 

60  Page  818. 


138  ROGER  BROOKE  TANEY 

be  the  case  in  a  charter  Hke  this,  where  the  power  of  the 
eminent  domain  is  exercised  in  taking  the  property  of 
individuals,  without  their  consent,  in  order  to  make 
the  contemplated  work."  This  is  sound  doctrine  and 
foreshadows  Taney's  decision  in  the  Charles  River 
Bridge  Case.^^ 

To  the  District  Attorneys,  Taney  gave  several 
opinions.  If  a  man  took  slaves  in  1831  to  Texas,  out- 
side of  the  limits  of  the  United  States,  expecting  to 
establish  a  domicile  there  and  not  as  a  sojourner,  he  may 
not  bring  these  slaves  back,  although  he  may  have 
changed  his  mind  within  a  few  weeks. ^^  j^  United 
States  Judge  in  Virginia^^  may  issue  a  warrant  to  arrest 
a  man^^  for  an  assault  committed  upon  the  President 
of  the  United  States  within  the  District  of  Columbia 
and  the  warrant  will  run  throughout  the  United  States. 

The  opinions  given  to  the  President  were  quite 
numerous. ^^     During    the    recess    of    the    Senate,    the 

61  Vide  p.  842. 

62  Page  796.  An  opinion  on  p.  826  deals  with  prosecution  of  persons  taking 
live  oak  ship  timber  from  the  public  lands. 

^  Page  853.    Opinion  to  F.  S.  Key,  District  Attorney  for  District  of  Columbia. 

64  R.B.Randolph. 

^  Two  of  these  opinions  dealt  with  Indian  questions:  the  right  of  Choctaws 
who  prefer  to  remain  in  the  East  to  become  citizens  of  the  United  States 
(p.  784)  and  the  power  of  the  President  to  sell  the  Choctaw  lands  (p.  786). 
The  salary  of  the  Surveyor  for  the  City  of  Washington  (p.  791),  counsel  fees 
in  a  case  in  the  District  of  Columbia  (p.  806),  the  grading  of  streets  in  Washing- 
ton (p.  837),  the  pay  of  clerks  of  the  Board  of  Navy  Commissioners  (p.  865) 
received  Taney's  attention.  He  held  that  there  was  no  warrant  in  law  to  pay 
a  Foreign  Minister,  or  a  Consul,  his  salary  for  a  quarter  of  a  year  after  his 
recall,  and  that  this  salary  should  be  paid  him,  only  when  he  is  abroad,  so 
as  to  allow  him  to  return  home  (p.  790) ;  that  a  widow  of  a  consul  who  died 
in  office  might  receive  a  quarter's  salary;  that  if  the  consul's  son  remained  at 
the  port  and  discharged  the  duties  of  the  office,  he  may  receive  the  compensa- 
tion and  that  the  funeral  expenses  of  a  consul  were  a  fair  charge  on  the  con- 
tingent fund  (p.  824);  that  the  duties  of  accounting  officers  were  not  judicial 
(p.  792,  vide  p.  797);  and  that  a  decision  of  the  Comptroller  concerning  an 


ROGER  BROOKE  TANEY  139 

President  had  power  to  fill  vacancies^^  which  exist  in 
subordinate  offices  and  was  not  limited  to  those  vacan- 
cies which  occur  in  the  recess.  It  was  the  intention  of 
the  Constitution  that  the  offices  created  by  law  and 
which  are  necessary  to  the  current  operations  of  the 
Government  should  always  be  full  and,  when  vacancies 
occur,  they  shall  not  be  protracted  beyond  the  time 
necessary  for  the  President  to  fill  them.  "The  Con- 
stitution was  framed  for  practical  purposes  and  a  con- 
struction that  defeats  the  very  object  of  the  grant  of 
power  cannot  be  the  true  one."  If  a  nomination  is  not 
confirmed  by  the  Senate,  the  commission  expired  at  the 
end  of  the  Session  and,  therefore,  a  vacancy  was  anew 
created.  "Vacancies  are  not  designedly  to  be  kept  open 
by  the  President  until  the  recess,  for  the  purpose  of 
avoiding  the  control  of  the  Senate."  The  Constitution 
uses  the  word  "happen"  of  vacancies,  and  that  shows 
that  accidental  ones  were  contemplated. 

Taney's  last  opinion  given  to  the  President  was  dated 
on  September  21,  1833,  and  was  to  the  effect  that  the 
Secretary  of  the  Treasury  might  take  security  from 
State  Banks  for  the  deposit  of  National  funds. 

In  addition  to  his  political  and  official  activity, 
Taney  found  time,  as  we  have  already  seen,  to  carry  on 
his  practice  before  the  Court  of  Appeals  at  Annapolis. 

account  is  conclusive  on  the  Executive  Branch  (p.  815)  of  the  Government, 
the  President  having  no  power  to  enter  into  the  correctness  of  the  account. 
General  Zachary  Taylor  had  been  sued  as  a  result  of  an  accounting.  The 
President  might  direct  the  District  Attorney  to  expedite  the  suit,  but  Taylor 
must  seek  relief  from  the  judgment  of  the  Court  in  an  act  of  Congress  (vide  also 
p.  839). 

Taney  also  considered  a  grant  of  lands  to  Ohio  for  the  Miami  Canal  (p.  843) 
and  of  public  lands  to  Arkansas  (p.  862). 

"  Page  826. 


140  ROGER  BROOKE  TANEY 

In  1832,  he  won  a  case  involving  a  guardianship^^  and 
lost  a  chancery  case.^^  He  was  one  of  the  Railroad 
counsel,  although  not  one  of  those  who  argued,  in  that 
year,  the  great  case  of  the  Chesapeake  and  Ohio  Canal 
Company  versus  the  Baltimore  and  Ohio  Railroad 
Company.  He  took  a  keen  interest  in  the  case.^^ 
Walter  Jones  and  A.  C.  Magruder  appeared,  in  the 
Court  of  Appeals,  for  the  Canal  Company,  Daniel 
Webster  and  Reverdy  Johnson  were  counsel  for  the 
Railroad  Company,  which  won  the  case  in  the  Chancery 
Court  below.  The  question  involved  the  priority  of  a 
right  of  way  along  the  Potomac  River  upon  the  north 
bank,  west  of  Harper's  Ferry.  Taney  had  been  inter- 
ested in  the  Railroad  for  some  time  and  had  gone  in  a 
party,  with  J.  H.  B.  Latrobe  and  others,  in  1830  to 
inspect  the  track  through  the  gorge  of  the  Patapsco 
River.''''  When  the  decision  was  rendered  in  the  Court 
of  Appeals  in  favor  of  the  Canal  Company  by  three 
judges  out  of  five  present,  the  sixth  judge  being  absent, 
Taney  felt  so  strongly  in  the  matter  that  he  wrote 
Latrobe,  on  January  6,  1832:  *'It  is  difficult  to  write  to 
you  on  the  subject,  without  saying  what  I  think  about 
the  conduct  of  the  three  judges  who  were  determined  to 
decide  the  case  against  us,  while  one  was  absent."  It 
will  be  remembered  that  the  decision  below  was  for  the 
Railroad  and  that,  if  the  Court  of  Appeals  had  been 
evenly  divided,  that  decision  would  have  been  confirmed. 

^'' Jarrett  v.  Stump,  appeal  from  Harford  County,  5  Gill  and  Johnson  27. 
Case  instituted  1827 — C.  W.  S.  Dorsey  and  Reverdy  Johnson  opposed  Gill 
and  Taney  as  counsel. 

^^  Chambers  v.  Chalmers,  4  Gill  and  Johnson  420.  Dulany  and  Reverdy 
Johnson  opposed  Taney  and  Mayer. 

"  4  Gill  and  Johnson  1. 

^•^  Semmes's  Latrobe,  pp.  332,  343,  344. 


ROGER  BROOKE  TANEY  141 

A  month  later,  Taney's  resentment  had  not  softened 
and,  on  February  7,  he  wrote  Latrobe  again  that  the 
judges;  "by  an  act  of  mere  despotic  power,"  have  de- 
cided, 'Vithout  taking  time  to  think  of  it  and  without 
having  made  up  their  minds  what  reasons  are  to  be 
given  for  it." 

In  1833,  Taney  argued  four  cases  before  the  Court  of 
Appeals,  three  of  which  he  won.  The  one  lost  concerned 
a  covenant  to  put  up  a  steam  engine^^  while  those  he 
won  concerned  a  chattel  mortgage,  ^^  ^n  alleged  fraudulent 
conveyance^*  in  Frederick  County,  and  a  condemnation 
by  a  foreign  prize  court  of  a  vessel  on  a  voyage  to 
Colombia  in  1822,  which  vessel  thereby  became  a  total 
loss  to  its  owners.^'*  In  this  last  case,  an  imposing  array 
of  counsel  were  engaged,  viz.,  R.  B.  Magruder,  Purviance 
Meredith,  Martin,  and  Wirt  against  Taney,  Reverdy 
Johnson,  and  Glenn. 

Taney  also  had  some  office  practice,  in  the  course  of 
which  he  wrote  an  opinion,  on  September  5,  1833,  on 
the  validity  of  the  law  of  New  Jersey  under  which  the 
Camden  and  Amboy  Railroad  and  the  Delaware  and 
Raritan  Canal  Company  obtained  a  monopoly  of  a 
transportation  route.  This  opinion,  which  was  printed 
in  Niles'  Register  on  the  subsequent  second  of  Novem- 
bers^ is  especially  important,  in  view  of  Taney's  later 
opinion  in  the  Charles  River  Case  and  it  is  interest- 
ing  to   learn S6   that  the  attorneys  for  the  old  bridge, 

'^  Watchman  v.  Crook,  5  Gill  and  Johnson  239.  Gill  and  Taney  against 
Reverdy  Johnson  and  Evans. 

^2  Clagett  V.  Sulman,  5  Gill  and  Johnson  314.  Alexander  and  Taney 
opposed  Reverdy  Johnson  and  Mayer. 

73  Birely  v.  Staley,  5  Gill  and  Johnson  433.  Taney,  Palmer  and  Duckett 
opposed  William  Schley  and  F.  A.  Schley. 

'*  Maryland  Insurance  Company  v.  Bathurst,  5  Gill  and  Johnson  159. 

75  45NilesReg.  150. 

''  Thayer's  Select  Cases  in  Constitutional  Law,  note  on  that  case. 


142  ROGER  BROOKE  TANEY 

against  which  the  decision  of  the  Court  was  made  and 
Taney's  opinion  was  written,  were  in  possession  of  this 
opinion  and  knew  that  they  had  to  combat  it. 

Taney  began,  by  admitting  that  it  was  too  well 
settled  to  be  disputed  that  a  charter  can  not  be  altered 
by  a  State  Legislature.  Had  the  Legislature,  however, 
the  power,  in  this  case,  to  make  the  contract,  or  is  it 
an  ultra  vires  one?  There  was  no  clause  in  the  New 
Jersey  Constitution,  which  gave  the  power  specifically, 
and,  if  it  existed,  it  must  be  regarded  as  inherent  in  the 
legislative  power,  unless  prohibited  to  the  Legislature. 
The  Charter  of  the  Bank  of  the  United  States  endeavored 
to  establish  such  a  monopoly;  but,  Taney  wrote, 

I  cannot  think  that  a  legislative  body,  holding  a  limited  author- 
ity under  a  written  constitution  can,  by  contract  or  otherwise, 

limit   the  legislative  power  of   their   successors If 

they  can  deprive  the  successors  of  the  power  of  chartering  com- 
panies of  a  particular  description,  or  in  particular  places,  it  is 
obvious  that,  upon  the  same  principle,  they  might  deprive  them  of 
the  power  of  chartering  any  corporations,  for  any  purpose  what- 
ever, and,  if  they  might,  by  contract  or  otherwise,  deprive  their 
successors  of  this  legislative  power,  they  could  surrender  any 
other  legislative  power  whatever,  in  the  same  manner,  and  bind 
the  State  forever  to  submit  to  it.  The  existence  of  such  a  power 
in  a  representative  body  has  no  foundation  in  reason,  or  in  public 
convenience,  and  is  inconsistent  with  the  principles  upon  which 
all  our  political  institutions  are  founded.  For,  if  a  legislative 
body  may  thus  restrict  the  powers  of  its  successors,  a  single 
improvident  act  of  legislature  may  entail  lasting  and  incalculable 
evils  on  the  people  of  a  State. 

Where  power  has  been  expressly  delegated  to  the  legis- 
lature, of  course,  it  binds  the  State  in  the  exercise  of 
that  power;  but  ''it  is  not  at  all  essential  to  the  exercise 
of  the  power  to  create  corporations  that  an  agreement 


ROGER  BROOKE  TANEY  143 

should  be  made  not  to  charter  other  corporations  which 
may  rival  it  in  trade." 

''The  charter  for  a  railroad  from  Trenton  to  New- 
Brunswick,"  Taney  concluded,  "would  not  be  inconsis- 
tent with  the  capacities  and  franchises  granted  to  the 
present  united  canal  and  railroad  companies.  They 
would  still  exercise  and  enjoy  them,  though  they  would 
prove  less  profitable." 

Finally,  he  said  that  the  "principles  of  moral  justice 
would,  undoubtedly,  in  many  cases,  require  that  the 
State  should  indemnify  a  party  who  had  confided  in  the 
public  agents  and  had  mistaken  their  power,"  but 
further  than  this,  even  "moral  justice"  would  not  go. 


CHAPTER  VII 

Secretary  of  the  United  States  Treasury 
(1833-1834) 

On  September  23,  1833,  Taney  became  Secretary  of 
the  Treasury,  and  continued  to  hold  that  portfoHo,  until 
his  nomination  thereto  was  rejected  by  the  United 
States  Senate,  on  June  24,  1834,  by  a  vote  of  28  to  18. 
He  resigned  on  the  following  day,  choosing  not  to  await 
the  end  of  the  Session,  as  he  might  have  done  under  the 
provisions  of  the  United  States  Constitution.^  He  was 
the  first  Cabinet  officer  whose  nomination  had  been  re- 
jected by  the  Senate, ^  and  the  rejection  shows  how 
bitter  had  become  the  fight  into  which  he  had  plunged. 

When  Taney  was  appointed,  John  Quincy  Adams 
wrote  in  his  diary^  "Upon  all  which  I  take  time 
for  reflection,"  but  very  few  others  did  so.  Taney 
appreciated  fully  the  gravity  of  the  situation.  Amos 
Kendall's  memory  doubtless  heightened  the  color  of 
Taney's  words,^  but  there  must  have  been  some 
measure  of  truth  in  his  report  of  what  Taney  said  to 
him  on  being  urged  to  accept  the  succession  to  Duane: 

1  have,  as  one  of  the  President's  constitutional  counsellors, 
advised  him  to  cause  the  public  deposits  to  be  removed  from  the 
Bank  of  the  United  States,  and  he  proposes  to  act  in  accordance 
with  my  advice.  I,  therefore,  feel  bound  in  honor  to  aid  and  sus- 
tain him  in  any  position  which  he  may  think  proper  to  assign  to 

^Hinsdale,  "President's  Cabinet". 

2  J.  F.  Essary  "Maryland  in  National  Politics,"  p.  168. 

'Vol.  10,  p.  17,  p.  48,  December  8.    He  read  the  papers  concerning  the 
removal  of  Deposits,  but  made  no  conmient. 
*  Kendall's  Autobiography,  p.  386. 

144 


ROGER  BROOKE  TANEY  145 

me.  But  [raising  his  hands  to  heaven]  in  doing  so,  I  give  up  the 
most  cherished  object  of  my  life.  I  am  not  a  politician  and  have 
never  sought  political  office.  The  summit  of  my  ambition  has 
been  a  seat  on  the  Bench  of  the  United  States  Supreme  Court, 
and  that  desire  I  surrender — accepting  the  Treasury  Department 
now.^ 

Not  only  had  he  excited  the  hatred  of  the  Bank's 
friends;  but,  what  must  have  been  far  more  galling  to 
him,  then,  and  for  long  years  afterwards,  he  was  regarded 
by  many  as  Jackson's  tool  and  instrument,  instead  of 
being,  as  was  really  the  case,  a  most  active  instigator, 
suggestor,  and  initiator  of  Jackson's  acts.  As  late  as  April 
18,  1839,  John  QuincyAdams,whohad  been  in  Washington 
throughout  the  fight  about  the  Bank,  wrote  in  his  diary, ^ 
after  reading  Duane's  book,  that  Taney  was  a  ''supple 
and  submissive  assentator"  to  Jackson.  Of  later  years, 
a  more  accurate  view  has  prevailed,  and  von  Hoist ^ 
wrote  that  Taney  was  "not  a  pliant  tool,  nor  one  that 
acted  through  selfish  motives."  ....  He  fully 
shared  Jackson's  opinion  concerning  the  Bank,  and  even 
seems  to  have  urged  the  removal  before  Jackson  decided 
it."^  In  the  remarks  which  Reverdy  Johnson  made 
after  Taney's  death, ^  he  stated  that,  for  some  years 
before  Taney's  appointment  to  the  Bench,  the  two  men 
were  "on  the  most  intimate  terms,"  and  Johnson 
"possessed  Taney's  confidence."  Taney  often  con- 
versed with  Johnson  "on  all  the  political  topics  of  the 

^  Kendall  said  (p.  388),  that  Taney  asked  him  to  become  President  of  the 
Bank  of  the  Metropolis — the  deposit  bank  in  Washington — and  act  as  super- 
intendent of  the  new  system  through  that  bank. 

«Vol.  10,  115. 

^  Constitutional  History  of  the  United  States,  II  65. 

8  Taney  wrote  Van  Buren  on  June  30,  1860,  an  interesting  letter  upon  the 
misconduct  of  Biddle  and  the  Bank,  10  Md.  Hist.  Mag.  22. 

9  Tyler  p.  496. 


146  ROGER  BROOKE  TANEY 

day,  and,  amongst  others  frequently,  of  the  charac- 
ter, tendency,  and  actual  condition  of  the  Bank."  At 
that  time,  he  did  not  anticipate  being  called  into 
Jackson's  cabinet,  and,  to  use  Johnson's  words,  *'he 
over  and  over  expressed  to  me  his  convictions  that  the 
Bank,  as  he  thought  it  was  administered,  was  dangerous 
to  the  true  interests  of  the  country,  because,  he  said,  it 

was  being  used  for  party  political  purposes 

He,  therefore,  considered  it  to  be  the  duty  and  the 
interest  of  the  government  (the  charter  clearly  giving 
the  power),  to  remove  the  public  money  from  its  custody, 
and  said,  that  if  the  authority  was  with  him,  he  would 
lose  no  time  in  exercising  it."  When,  therefore,  he  was 
appointed  Secretary  of  the  Treasury,  the  order  which  he 
gave  "was  but  the  carrying  out  of  a  measure  which  he 
had  long  deemed — whether  correctly  or  not  is  immate- 
rial— to  be  important  to  the  public  good If 

influence,  therefore,  was  exerted  at  all  in  relation  to  the 
measure,  it  was  the  influence  of  Taney  on  Jackson,  and 

not  of  Jackson  on  Taney He  was  said  to 

have  been  an  instrument;  when,  on  the  contrary,  his  was 
the  mind  that  determined  upon  and  adopted  the  measure." 
Taney  had  taken  office,  so  as  to  carry  out  the  policy 
of  ceasing  to  place  the  deposit  of  public  moneys  in  the 
United  States  Bank,  drawing  out  what  had  already 
been  placed  there,  according  to  the  needs  of  the  Govern- 
ment, and  depositing  these  funds,  in  the  future,  in 
selected  State  banks — the  so  called  "pet  banks."  Only 
men  blinded  with  prejudice,  or  self-interest,  could  have 
supported  the  plan.  Parton,  an  ardent  admirer  of 
Jackson,  is  forced  to  condemn  the  project^®  exclaiming: 
"What  a  simple,  what  a  harmless  measure  this  appears! 

i«  Life  of  Jackson  III,  p.  499. 


ROGER  BROOKE  TANEY  147 

And  harmless  it  would  have  been :  but  for  one  lamentable 
circumstance.  The  government  had  not  devised  a  proper 
place  to  which  to  transfer  the  public  money.  "^^ 

There  was  another  difficulty  in  Taney's  case.  Though 
the  standard  of  public  honor  had  not  then  been  made 
that  which  Caesar  proclaimed  concerning  his  wife  to  be 
above  suspicion,  yet  even  then  there  was  some  feeling 
concerning  the  impropriety  of  Taney's  selection  of  the 
Union  Bank  of  Maryland  as  one  of  the  banks  to  receive 
the  public  deposits.  Taney  had  been  counsel  for,  and 
director  of  this  bank,  and  was  a  stockholder  in  it,  at  the 
time  he  selected  it  as  a  government  depository. ^^ 

Before  long,  Taney's  faith  in  his  friend,  Thomas 
Ellicott,  the  President  of  that  Bank,  was  rudely  shat- 
tered.^^  Taney  feared  that  the  United  States  Bank 
would  attempt  to  injure  the  deposit  banks,  by  calling 
them  to  pay  balances  due,  and,  to  offset  this  demand, 
he  placed  large  drafts  on  the  Bank  of  the  United  States  in 
the  deposit  banks  at  New  York,  Philadelphia,  and 
Baltimore,  with  the  understanding  that  these  drafts 
should  not  be  used  otherwise.  The  Bank  of  the  United 
States  took  no  steps  to  hurt  the  deposit  banks;  but, 
contrary  to  Taney's  instructions,  a  few  days  after  the 
new  system  had  gone  into  operation,  the  Union  Bank 
cashed  a  draft  on  the  United  States  Bank  for  $100,000. 
Before  there  was  time  for  any  explanation,  the  other 
one  given  the  Union  Bank  for  the  same  amount,  was 
cashed  likewise.  ^^     The  money  was  used  in  stock  specu- 

^^  Parton  believed  the  measure  first  occurred  to  Jackson  early  in  1833, 
while  engaged  in  conversation  with  Frank  P.  Blair. 

^2  Sumner's  Jackson  p.  307  states  that  he  sold  his  stock  on  February  18, 
1834.  When  Niles's  Register  for  September  28,  vol.  45,  p.  65,  announced 
Taney's  appointment,  it  added  that  it  was  understood  that  the  Union  Bank  of 
Maryland  would  obtain  the  deposits  in  Baltimore. 

^^  Sumner's  Jackson,  307,  Kendall's  Autobiography,  392. 

1*  Kendall  p.  392  states  that  Taney  privately  told  the  deposit  banks  not  to 
lend  money  to  the  Post  Ofl&ce  Department. 


148  ROGER  BROOKE  TANEY 

lation,  and  no  satisfactory  response  was  made  to  Taney's 
inquiry  as  to  the  matter.  Then  he  asked  Ellicott  to 
come  to  Washington  and  explain  his  conduct.  Ken- 
dall was  with  Taney,  when  Ellicott  arrived,  and  lis- 
tened to  his  *' stammering  explanation."  He  virtually 
admitted  the  use  of  the  money  for  stock  speculations, 
when  taxed  with  this  by  Kendall.  Taney  "was  an- 
noyed the  more,"  because  Ellicott  was  "his  friend  and 
special  adviser  in  financial  matters,"  and  because  an 
exposure  of  him  would  "put  a  powerful  weapon  into  the 
hands  of  the  enemy."  Consequently,  he  dismissed 
him,  with  a  reprimand,  and  merely  refused  him  more 
money  in  the  future,  but  Congress  found  out  the  trans- 
action after  all,  and  investigated  it. 

As  late  as  May  23,  1834,  however,  we  find  a  copy  of  a 
letter  from  Taney  to  Ellicott. ^^  It  seems  that  Taney 
had  a  conversation  with  Ellicott,  on  the  previous 
Sunday,  and  had  since  received  two  letters  from  him. 
For  unnamed  reasons,  Ellicott,  of  whom  Taney  speaks 
as  "among  my  oldest  and  most  confidential  friends," 
and  as  "one  of  my  oldest  and  most  trusted  friends," 
had  become  so  alarmed  at  the  "power  of  the  Bank  of 
the  United  States  to  do  mischief,"  that,  by  an  aston- 
ishing right  about  face,  he  actually  recommended  a 
recharter  of  the  Bank.  Taney,  as  ever,  believed  that 
this  was  a  "struggle  for  the  liberties  of  the  country,  and 
that,  if  the  Bank  triumphs,  the  Government  passes  into 
the  hands  of  a  great  monied  corporation."  To  advocate 
the  renewal  of  the  charter,  would  be  "the  betrayal  of  the 
best  and  dearest  interests  of  the  country  and  would 
justly  cover"  Taney's  "name  with  dishonor."     Ellicott 

1^  5  Md.  Hist.  Mag.  35,  prints  this  letter,  the  manuscript  of  which  is  dis- 
tinctly marked  by  Taney  as  a  copy  of  one  sent  to  Ellicott,  but  the  editor  con- 
jectures that  it  was  written  to  Biddle,  which  the  contents  show  to  be  impossible.. 


ROGER  BROOKE  TANEY  149 

had  said  that  there  was  a  desire  in  Washington  to  with- 
draw the  deposits  from  the  Union  Bank,  on  account  of 
loss  of  confidence  in  him.  Taney  denied  this,  and  said 
that  "they  will  be  cheerfully  continued  there,  as  long 
as  it  is  believed  to  be  a  safe  depositary."  Taney  was 
serenely  sure  that,  in  the  long  run,  "the  efforts  of 
the  Bank  to  ruin  the  country  will  be  comparatively 
harmless." 

The  administration's  unsound  financial  policy  caused 
great  distress  throughout  the  country,  and  a  terrible  panic 
ensued,  accompanied  with  widespread  financial  ruin.^® 
These  things  did  not  shake  Jackson's,  nor  Taney's, 
determination;  but  they  brought  to  Washington,  in 
December,  a  Congress  in  which  the  Whig  majority  of 
the  Senate  was  almost  foaming  with  rage.  Jackson's 
message^^  told  Congress  that  "the  Secretary  of  the 
Treasury  has  directed  the  money  of  the  United  States 
to  be  deposited  in  certain  State  Banks,  designated  by 
him,  and  he  will,  immediately,  lay  before  you  his  reasons 
for  this  direction.     I  concur  with  him,  entirely,  in  the 

^^  Among  Taney's  correspondence  of  the  period,  are  found  two  letters  of 
some  interest,  printed  in  13  Md.  Hist,  Mag.  161  and  164,  written  to  Taney 
by  Jackson  and  Andrew  Stevenson.  Jackson  enclosed  a  note  from  Moses 
Dawson  of  Cincinnati,  asking  for  the  names  of  holders  of  government  "stock," 
that  he  might  endeavor  to  induce  them  to  sell  it  and  lend  him  the  money 
"at  a  more  advantageous  rate  of  interest!"  while  Stevenson  told  of  Mr.  Daniel's 
refusal  of  of&ce,  and  requested  that  Mr.  Price,  whom  Duane  had  forced  to 
resign  from  a  position  in  the  Treasury  Department,  might  be  reinstated.  The 
Jackson  papers  contain  two  letters  dated  December  20:  one  from  Jackson  to 
Taney  about  the  Potomac  Bridge,  and  one  from  Taney  to  Loammi  Baldwin, 
Superintendent  of  the  Dry  Dock  at  Norfolk,  requesting  him  to  come  to  Wash- 
ington for  a  conference  over  the  bridge.  Two  long  and  interesting  letters 
from  Key,  written  from  Alabama,  in  November,  1833,  and  treating  of  the 
strength  of  the  Nullifiers  there  and  of  Indian  affairs  are  printed  in  5  Md.  Hist. 
Mag.  at  pp.  27  &  ff. 

1^  In  5  Md.  Hist.  Mag.  32  is  printed  a  letter  from  Van  Buren  to  Taney  dis- 
cussing this  message. 


150  ROGER  BROOKE  TANEY 

view  he  has  taken  of  the  subject,  and,  some  months 
before  the  removal,  I  urged  upon  the  department  the 
propriety  of  taking  that  step."  When  Jackson  sug- 
gested this  step  to  Duane,  upon  June  1,  he  was  actuated 
by  the  ''near  approach  of  the  day  on  which  the  charter 
will  expire,  as  well  as  the  conduct  of  the  Bank;"  but, 
late  in  August,  he  received  from  the  Government  Direc- 
tors, a  report,  "establishing  beyond  question,"  that  the 
Bank  had  been  active  in  politics  and  had  "placed  its 
funds  at  the  disposal  of  its  president,  to  be  employed  in 
sustaining  the  political  power  of  the  Bank."  Jackson 
then  felt,  as  he  told  Congress,  that  the  Secretary  of  the 
Treasury,  the  only  officer  who  could  remove  the  deposits 
in  accordance  with  the  terms  of  the  charter,  ought 
at  once  to  exert  his  power,  "to  deprive  that  great  cor- 
poration of  the  support  and  countenance  of  the  Gov- 
ernment, in  such  a  use  of  the  funds  and  such  an  exertion 
of  its  power." 

On  the  next  day,  Taney's  report  was  in  the  hands  of 
Congress. 18  He  began,  by  stating  that,  in  pursuance  of 
the  power  given  him  by  the  Charter  of  the  Bank,  he  had 
"directed  that  the  deposits  of  the  money  of  the  United 
States  shall  not  be  made"  in  the  Bank.  The  Charter 
was  a  contract,  and  vested  power  to  withdraw  the 
deposits  in  the  Secretary  of  the  Treasury,  "whenever  the 
change  would,  in  any  degree,  promote  the  public  interest. 
It  was  not  necessary  that  the  deposits  should  be  unsafe 

^8  Senate  Docs.  23rd  Cong.  1st  Session  pp.  1-41.  Van  Buren  in  his  Auto- 
biography (Am.  Hist.  Ass.  Rep.  1918  vol.  II,  p.  654)  wrote,  praising  the  report 
for  "the  clearness,  the  distinctness,  and  the  obvious  freedom  from  either 
reserve  or  passion  which  characterize  its  statement  of  the  facts  that  belong  to 
the  case  and  the  irrefragible  proofs  it  deduces  from  them  that  the  acts  im- 
puted to  the  bank  were  voluntary"  and  intended.  He  refers  to  Taney  (p.  364) 
as  "accomplished  and  upright."  The  relations  between  the  two  men  were 
close  (p.  511) 


ROGER  BROOKE  TANEY  151 

in  order  to  justify  their  removal.'*  Taney  considered 
that  the  "general  interest  and  convenience  of  the  people 
must  regulate  his  conduct."  The  reasons  he  assigned 
for  his  action  were  these:  1.  The  Bank's  charter  will 
not  be  renewed,  and,  consequently,  Taney  must  make 
arrangements,  before  March  1836,  for  the  deposits — a 
date  nearly  two  and  one-half  years  away.  A  "serious 
inconvenience"  would  result,  if  a  large  sum  were  left 
in  the  Bank  until  the  last  day.  The  Bank  should  be 
forced  to  ^fjfmi  its  notes,  and  suffer  those  of  the  State 
Banks  to  take  their  place.  The  time  "which  remained 
for  the  charter  to  run"  was  "not  more  than  was  proper 
to  accomplish  the  object"  of  withdrawing  these  notes 
with  safety  to  the  community.  "If  it  had  depended" 
upon  Taney's  "judgment,"  the  deposits  would  have  been 
withdrawn  "at  an  earlier  period."  "I  should  have  pre- 
ferred," he  wrote,  "and  should  have  taken  a  longer 
time."  After  the  last  Presidential  election,  the  Bank 
diminished  its  discounts,  thus  injuring  the  people.  The 
conduct  of  the  Bank  left  Taney  no  choice  as  to  delay 
action,  until  Congress  met  (as  he  stated  he  would  have 
preferred).  1^  "If  the  measure  had  been  then  suspended, 
to  be  resumed  at  a  future  time,  it  was  within  the  power 
of  the  Bank  to  produce  the  same  evil,  whenever  it  was 
attempted."  The  conduct  of  the  Bank  had  made  it 
Taney's  duty  to  withdraw  the  deposits,  since  its 
Exchange  Committee,  of  which  not  one  public  director 
was  a  member,  controlled  many  of  the  Bank's  affairs. 

2.  The  Bank  wanted  damages  on  a  protested  note 
under  the  French  treaty.  An  award  to  the  United 
States  of  certain  claims  against  France  had  been  made 
by  Commissioners  under  a  treaty.  The  United  States 
had  drawn   a  bill  of  Exchange  against  France  for  the 

^^  This  seems  disingenuous. 


152  ROGER  BROOKE  TANEY 

amount.  The  French  Chamber  of  Deputies  refused  to 
appropriate  money  to  pay  the  award  and  the  bill,  which 
had  been  sent  through  the  United  States  Bank,  was 
returned  protested.  The  Bank  properly  asked  damages 
for  its  charges.  Catterall^^  speaks  of  Taney's  refusal  to 
pay  the  Bank  this  claim  for  damages,  as  ''forfeiting  the 
national  honor,"  showing  how  different  is  modern 
opinion  from  that  of  the  Jacksonians. 

3.  The  Bank  used  its  money  w^ith  a  view  to  secure 
political  power,  and  thus  secure  the  renewal  of  its 
charter.  Taney  maintained  that  the  conduct  of  the 
Bank  had  "been  such  as  would  induce  a  prudent  man,  in 
private  life,  to  dismiss  his  agent  from  his  employment." 

4.  "In  the  selection  of  the  State  Banks  as  the  fiscal 
agents  of  the  Government,"  Taney  reported,  "no  dis- 
advantages seem  to  have  been  incurred,  on  the  score 
of  safety  or  convenience,  or  the  general  interests  of  the 
country,  while  much  that  is  valuable  will  be  gained  by 
the  change."  These  Banks  will  appreciate  the  interests 
of  the  people  and  will  not  seek  political  power. 

When  one  reads  Taney's  report,  one  thinks  of  the 
Motto:  "we  sutor  ultra  crepidam,''  He  was  a  shrewd 
politician,  and  an  able  lawyer;  but,  assuredly,  he  was  no 
financier.  Dewey  states  the  fundamental  criticism  to 
be  made  on  the  Report  is  that  it  was  "political,  rather 
than  fiscal. 21  Bolles22  shows  the  weakness  of  Taney's 
position,  in  that  he  alleged  the  curtailment  of  discounts 
as  a  cause  for  removing  the  deposits,  while,  by  removing 
them  to  cause  the  retiring  of  the  Bank's  notes,  his  act 
had,  as  its  "inevitable  effect,"  the  still  further  contrac- 
tion of  discounts.     "He   compelled  the  institution  to 

20  Second  Bank  of  the  United  States,  p.  302. 
"  Financial  History  of  U.  S.,  p.  207. 
«  Financial  History  of  U.  S.,  U,  p.  342. 


ROGER  BROOKE  TANEY  153 

curtail  deposits  and  then  most  unjustly  blamed  it  for  so 
doing.  The  fairest  construction,  perhaps,  to  put  on 
Taney's  conduct,  is  that  he  did  not  comprehend  what  he 
was  about,  nor  the  consequences  of  his  own  acts.  Others 
comprehended  them  clearly  enough;  but  he  was  finan- 
cially blind." 

Bassett^^  is  more  favorable  in  his  judgment,  writing 
that  Taney  "was  the  ablest  man  in  the  anti-bank  faction, 
and  his  report  is  in  pleasing  contrast  with  the  loose 
reiterations  of  suspicion  and  assumption,  which  came 
so  plentifully  from  his  colleagues." 

Justice  Story  wrote  soon  after  he  read  this  report, ^^ 
that  he  thought  that  the  Secretary  of  the  Treasury  had 
discretion  to  remove  the  deposits,  provided  he  acted 
bona  fide.  Differing  from  Taney,  he  considered  this 
power  "a  personal  trust"  with  Taney,  and  one  which 
had  "nothing  to  do  with  the  ordinary  duties  of  his 
department."  The  "President  had  no  right  to  inter- 
vene" in  the  matter,  and  Congress  might  require  the 
deposits  to  be  restored,  even  without  Taney's  consent. 
"The  Secretary's  discretion  was  not  limited  to  cases 
of  danger;  but,  if  he  acts  in  personam,  in  pursuance  of 
the  President's  orders,  without  the  independent  exercise 
of  his  judgment,  he  violates  his  trust."  Neither  the 
State  Banks,  nor  the  Secretary  were  regarded  by  Story 
as  having  the  right  to  make  contracts  for  deposits. 

On  December  26  and  29,  Henry  Clay  delivered  a  great 
speech  in  the  Senate,  attacking  Taney,  and  so  much 
applause  followed  the  end  of  the  speech,  that  the  gal- 
leries were  cleared. ^^     The  speech  was  made  in  support 

23  ''Life  of  Jackson,"  p.  646. 

24  Story's  Story  II,  122,  February  11, 1833. 

25  Cong.  Debates,  vol.  10,  pt.  1,  pp.  58  to  94.  Van  Buren  in  his  Auto- 
biography p.  644  (Am.  Hist.  Ass.  Rep.  1918,  vol.  II)  speaks  of  Clay's  "unfair 
attack  upon  Taney,  on  the  ground  of  his  interest  in  the  Union  Bank  of  Mary- 


154  ROGER  BROOKE  TANEY 

of  a  resolution  which  stated  that  the  reasons  brought 
forward  by  Taney  for  the  removal  of  the  deposits  were 
"unsatisfactory  and  insufficient."  Clay  asserted  that 
Taney  ''throughout  his  whole  career,  has  been  uniformly 
opposed  to  democracy,"  and  referred  to  the  fact  that, 
in  1820,  when  the  country  was  "threatened  with  civil 
war  and  a  dissolution  of  the  union,  voted  (though  the 
resident  of  a  Slave  State) ,  in  the  Legislature  of  Maryland 
against  the  admission  of  Missouri  into  the  Union  with- 
out a  restriction  incompatible  with  her  rights  as  a  mem- 
ber of  the  Confederacy."^^  He  maintained  that  the 
Secretary  of  the  Treasury  was  a  "mere  representative 
and  agent  of  Congress,  acting  in  subordination  to  it, 
and  bound,  whenever  he  did  act,  to  report  to  his  principal 
his  reasons,  that  they  might  be  judged  of,  and  sanc- 
tioned, or  overruled. "27  This  view  has  now  been  given 
up;  but,  with  more  reason.  Clay  complained  that  the 
public  money  had  not  been  left  in  the  Bank  until 
December,  when  Congress  met,  and  he  sneered  at  the 
"reckless"  and  "confident  assertions"  of  this  "wonder- 
ful financier,"  this  "modern  Turgot." 

Taney  had  his  supporters,  both  in  and  out  of  Congress, 
and  the  New  Jersey  legislature,  on  January  11,  1834, 
instructed  the  Senators  and  Congressmen  from  the 
State  to  sustain  Taney's  course. ^^  In  the  Senate,  how- 
ever, there  was  a  Whig  majority,  atid  the  Committee  of 
Finance,  through  Daniel  Webster,  made  a  report^^  con- 
demning the  removal  of  the  deposits. 

land,  which  the  latter  turned  with  so  much  power  upon  his  assailant."  In 
another  place  Van  Buren  asserted  "nor  was  there  a  single  man,  however 
steeped  in  party  politics,  not  excepting  Mr.  Clay  himself,  who  harbored  a  doubt 
of  the  entire  purity  of  Taney's  motives  and  acts."  (p.  737). 

26  Op.  cit.,  p.  76. 

27  Op.  cit.,  p.  79. 

28  Thorpe,  "Statesmanship  of  Andrew  Jackson,"  p.  353. 

29  Cong.  Debates,  23rd  Congress,   1st  Session,  vol.  10,  pt.  4,  App.  p.  146. 


ROGER  BROOKE  TANEY  155 

The  Secretary's  construction  of  the  law,  according  to  this 
report,  was  that  he  has  power  to  remove  the  deposits,  whenever, 

for  any  reason,  he  thinks  the  public  good  requires 

The  keeping  of  the  public  money  is  not  a  matter  which  is  left, 
at  the  will  of  the  Secretary,  or  any  other  officer  of  the  government. 
This  public  money  has  a  place  fixed  by  law  and  settled  by  contract, 
and  this  place  is  the  Bank  of  the  United  States.  In  this  place, 
it  is  to  remain,  until  some  event  occur,  requiring  its  removal.  To 
remove  it,  therefore,  from  this  place,  without  the  concurrence  of 
just  cause,  is  to  thwart  the  end  and  design  of  the  law,  defeat  the 
will  of  Congress,  and  violate  the  contract  into  which  the  Govern- 
ment has  solemnly  entered. 

Further  on,  the  report  maintained  that  the  Secretary's 
power  was  provisional,  that  the  propriety  of  its  exercise 
*' is  ultimately  referred  to  the  wisdom  of  Congress,"  and 
that  his  "contingent  power  was  for  sudden  emergency 
to  secure  safekeeping."  Surely,  the  safety  of  the 
deposits  was  not  impaired  by  the  approaching  end  of  the 
Charter. 

Calhoun  took  a  rather  different  view,  and,  though  he 
denounced  Jackson  and  Taney,  in  a  speech  before  the 
Senate,  said  that, 

While  I  thus  severely  condemn  the  conduct  of  the  President  in 
removing  the  former  Secretary,  and  appointing  the  present,  I 
must  say  that,  in  my  opinion,  it  is  a  case  of  the  abuse,  and  not  of 
the  usurpation,  of  power.  I  cannot  doubt  that  the  President  has, 
under  the  Constitution,  the  right  of  removal  from  office,  nor  can  I 
doubt  that  the  power  of  removal,  wherever  it  exists,  does,  from 
necessity,  involve  the  power  of  general  supervision;  nor  can  I 
doubt  that  it  might  be  constitutionally  exercised  in  reference  to  the 
deposits. 

In  the  House  of  Representatives,  there  was  a  Demo- 
cratic majority,  and  James  K.  Polk,  the  Chairman  of  the 
Committee  of  Ways  and  Means,  made  a  report  for  that 


156  ROGER  BROOKE  TANEY 

Committee  on  March  4,  approving  Taney's  December 
report^^  and  stated  that  ''the  hope  of  obviating  all  the 
difficulties  of  the  final  substitution  of  a  metallic  cur- 
rency, in  exclusion  of  bank  paper  of  every  kind,  is  a 
mere  delusion  .mfc 

John  Quincy  Adams  endeavored  to  give  ''utterance 
to  his  indignation"  at  Taney's  conduct  by  a  speech 
upon  the  floor  of  the  House  of  Representatives,  but  the 
"address  of  the  Speaker"  and  the  use  of  the  previous 
question  prevented  him  from  doing  so.^^  He  immedi- 
ately published  the  speech  he  had  prepared  himself  to 
deliver,  in  which  he  asserted  that  "the  removal  of  the 
deposits,  and  the  contract  with  the  State  Banks  to 
receive  those  deposits,"  were  both  unlawful.  He  ana- 
lyzed the  Committee's  report  with  minuteness,  and 
concluded  that  their  effort  had  been  vain  "to  bolster  up 
the  lawless  act  of  the  Secretary  of  the  Treasury  in  trans- 
ferring public  moneys  from  the  lawful  place  of  deposit 
to  others,  in  one  of  which,  at  least,  the  Secretary  had  an 
interest  of  private  profit  to  himself."  This  innuendo 
was  made  perfectly  clear,  when  Adams  stated  further  on 
in  the  speech, 

I  believe  both  the  spirit  and  the  letter  of  the  law  to  have  been 
violated  by  the  present  Secretary  of  the  Treasury,  when  he  trans- 
ferred the  public  funds  from  the  Bank  of  the  United  States  to  the 
Union  Bank  of  Baltimore,  himself  being  a  stockholder  therein. 
And  so  thorough  is  my  conviction  of  this  principle,  and  so 
corrupting  and  pernicious  do  I  deem  the  example  he  has  thereby 
set  ...  .  that,  if  there  were  a  prospect  of  his  remaining 
in  office  longer  than  till  the  close  of  the  present  session  of  the 
Senate,  I  should  deem  it  an  indispensable,  albeit  a  painful,  duty 
of  my  station,  to  take  the  sense  of  this  House  on  the  question. 

30  Cong.  Debates.  23rd  Congress,  1st  Sess.,  Vol.  10,  pt.  4,  App.  161.  A 
minority  report  was  signed  by  three  Whig  members,  R.  H.  Wilde,  B.  Cochran, 
and  Horace  Binney.    Op.  cit.,  p.  177. 

»'  Quincy's  "Life  of  J.  Q.  Adams,"  p.  226. 


ROGER  BROOKE  TANEY  157 

Adams  then  charged  that  Taney  ''tampered  with  the 
public  moneys,  to  sustain  the  staggering  credit  of 
selected  depositaries,"  and  scattered  the  funds  ''abroad 
among  swarms  of  rapacious  political  paj|tTsans."  The 
remainder  of  the  speech  consisted  maMf  of  an  attack 
upon  Jackson  and  the  policy  of  the  miancial  adminis- 
tration and  of  the  mistaken  characterization  of  Taney  as 
a  "supple  and  permissive"  tool  of  the  President. 

On  February  5,  1834,  the  Senate  passed  the  resolu- 
tions before  it,  by  a  vote  of  28  to  18,  for  the  first  one,  and 
26  to  20,  for  the  second.  These  resolutions  asserted 
"that  the  reasons  assigned  by  the  Secretary  of  the 
Treasury  for  the  removal  of  the  money  of  the  United 
States,  deposited  in  the  Bank  of  the  United  States  and 
its  Branches,  communicated  to  the  Congress  on  the 
fourth  day  of  December,  1833,  are  unsatisfactory  and 
insufficient;"  and  "that  the  President,  in  the  late 
Executive  proceedings  in  relation  to  the  public  revenue, 
has  assumed  to  himself  authority  and  power  not  con- 
ferred by  the  Constitution  and  laws  of  the  United  States, 
but  in  derogation  of  both."  Jackson  protested,  on 
April  15,  against  these  resolutions,  and,  on  May  7,  the 
Senate  replied  with  a  refusal  to  spread  the  protest  on 
the  journal.  Jackson's  friends,  headed  by  Benton, 
labored  incessantly  to  have  this  action  reversed,  and,  on 
January  16,  1837,  the  majority  of  the  Senate  having 
changed  from  the  Whigs  to  the  Democrats,  a  resolution 
passed  that  body,  expunging  the  former  resolutions. 

Macdonald  said^^  i-^^t  the  "right  of  either  House  of 
Congress  to  express,  by  formal  resolutions,  its  opinion 
of  an  executive  act,  is  neither  granted  nor  withheld  by 
the  Constitution,  but  the  right  to  censure  would  seem 
to  be  precluded  by  the  grant  to  Congress  of  the  power  of 

'2  "jacksonian  Democracy,"  p.  227. 


158  ROGER  BROOKE  TANEY 

impeachment."  Surely,  this  view  is  too  extreme.  The 
Executive  act  may  be  censurable,  yet  not  so  seriously 
wrong  as  to  justify  the  removal  from  office  by  impeach- 
ment. 

In  Baltimore,  also,  Taney  met  opposition.  On  March 
5,  a  public  meeting  was  held  to  urge  the  restoration  of 
the  deposits  and  to  receive  a  report  of  a  deputation  which 
visited  Washington  to  see  Taney.^*  The  deputation  was 
composed  of  William  Crawford,  Jr.,  George  Brown, 
James  W.  Patterson,  and  George  R.  Gaither.  Taney 
received  them  with  his  usual  courtesy,  in  the  presence  of 
Isaac  McKim,  one  of  Baltimore's  Congressmen,  and  the 
interview  lasted  for  half  an  hour.  Brown,  with  whom 
Taney  had  a  ** familiar  and  friendly  acquaintance,"  told 
Taney  that  he  wished  to  speak  with  him,  "officially,  and 
as  a  citizen  of  Baltimore,  who  could  not  be  indifferent 
to  its  welfare."  The  deputation  came  with  no  un- 
friendly purpose,  but  to  communicate  to  Taney  the 
public  distress  and  to  ask,  whether,  in  view  of  this,  he 
could  not  change  his  position  in  reference  to  the  Bank, — - 
a  position  which  appeared  to  the  deputation  so  unfortu- 
nate. They  reported  that  Taney  told  them  that  the 
"Bank  had  arrayed  itself  against  the  Government,  and 
that  the  Government  would  not  yield,  and  that  the 
impression  of  the  Government  was  that  the  evil  the 
people  complained  of  grew  out  of  the  great  power  of  the 
Bank,  that  the  Government  was  making  an  experiment 
and,  however  bold,  he  would  not  undertake  to  advise 
any  change  from  the  position  it  had  assumed  against 
the  Bank,  that  he  found  no  difficulty  in  transferring 
funds  from  one  part  of  this  extensive  country  to  the 
other."  Patterson,  who  had  come  in  late,  then  said: 
"Sir,  if  this  experiment  should  be  persisted  in,  and  some 

»  46  NHes  Register  30,  31. 


ROGER  BROOKE  TANEY  159 

relief,  such  as  we  do  not  now  anticipate,  should  not  be 
given — a  large  proportion  of  the  trading  community 
must  fail."  Taney  replied,  relentlessly:  "If  all  did 
fail,  the  policy  of  the  Government  would  not  be  changed. 
If  the  commercial  classes  had  properly  sustained  their 
State  Institutions,  the  present  state  of  things  would  not 
have  existed.  The  Government  would  make  no  change, 
until  the  present  Bank  charter  expired.  I  am  surprised, 
that,  after  all  that  had  appeared  in  the  newspapers  and 
the  long  speeches  made  in  Congress,  more  failures  had 
not  taken  place."  With  this  unsatisfactory  report,  the 
deputation  was  compelled  to  return  home.  Taney 
publicly  denied  the  accuracy  of  the  report  of  the  con- 
versation, and  McKim  lamely  supported  him,^^  but  the 
deputation  stood  their  ground,  and  their  statements 
leave  the  impression  that  their  memories  of  the  meeting 
were  the  more  accurate. ^^ 

Taney's  holdings  of  stock  in  the  Union  Bank,  amount- 
ing, it  was  said,  to  $6000  or  $7000,  now  became  a  scandal 
and  Clay,  on  March  25,  in  the  Senate,  referred  to  these 
holdings  and  to  Taney's  former  directorship  in  the 
Bank. 3^  The  Bank  question  was  intimately  connected 
with  that  of  the  currency.  Benton  and  Taney  were 
hard  money  men,  and  Benton  introduced  into  the 
Senate,  a  bill  for  equalizing  the  value  of  gold  and  silver 

3<  46  Niles  Register  p.  34,  March  15,  1834,  and  p.  49,  March  22,  1834, 
pp.  55,  71. 

^  Taney  said  that  he  knew  Crawford  and  Gaither  slightly,  that  he  did  not 
speak  for  publication,  that  he  had  not  meant  to  speak  slightingly  of  the  "mer- 
cantile community,"  but  had  said  that  it  might  "bring  a  panic  on  the  com- 
munity for  party  purposes,"  and  so  bring  on  "general  ruin."  He  was  willing  to 
leave  it  to  the  "public  as  to  whether  he,  or  the  committeemen,  would  be  likely 
to  feel  more  sympathy  for  the  sufferings  of  our  citizens,  and  which  would 
make  greater  sacrifices  to  alleviate  and  relieve  them,"  He  cried  out  that  the 
"Committee  misrepresents  me  most  grossly;"  but  the  present  writer  regrets 
that  he  does  not  believe  such  to  be  the  case. 


160  ROGER  BROOKE  TANEY 

and  legalizing  the  tender  of  foreign  coins  of  both  metals. 
Taney  advocated  the  passage  of  this  measure  "with 
great  zeal,"^^  for  he  was  very  anxious  to  do  away  with 
paper  currency  so  far  as  possible.  He  was  in  frequent 
correspondence  with  Benton, ^^  had  frequent  interviews 
with  him,  while  the  measure  was  pending,  and  rejoiced 
with  Benton  over  its  successful  passage. 

During  the  spring,  the  difficulties  with  France  came 
to  a  crisis,  which  appeared  to  Taney,  as  he  reflected  upon 
it  years  afterwards,^^  the  ''most  dangerous  moment  of 
General  Jackson's  administration."  At  a  cabinet  meet- 
ing, held  shortly  after  France  had  refused  to  appropriate 
the  money  to  pay  indemnity  stipulated  by  treaty, 
Jackson  stated  that  he  proposed  to  communicate  the 
news  of  this  refusal  to  Congress,  by  a  special  message, 
and  to  "ask  authority  to  issue  letters  of  marque  and 
reprisal  against  France,  in  order  to  indemnify  ourselves." 
Taney  was  surprised  by  this  position,  and  still  more  so 
from  the  support  which  it  received  from  McLane,  the 
Secretary  of  State,  and  Cass,  the  Secretary  of  War. 
Taney  "knew  how  sensitive  General  Jackson  was  upon 
questions,  which  he  thought  concerned  the  honor  of  the 
United  States,  and  that,  upon  such  occasions,  he  was  apt 
to  be  prompt  in  decision  and  prompt  in  action;  and  did 
not  always  stop  to  calculate  the  difficulties  in  his  way, 
or  the  forces  that  might  be  arrayed  against  him." 
Furthermore,  he  had  consulted  with  McLane,  so  that 

^46  Niles  Reg.  March  29,  1834,  pp.  67,  68.  Niles  Reg.,  AprU  5,  1834, 
refers  to  Senate  vote  of  March  28  against  Taney.  An  interesting  letter  from 
Aaron  Burr  to  Van  Buren  relating  to  a  claim  against  the  United  States  for 
services  in  the  Revolutionary  War,  written  on  March  25  and  referred  by  him 
to  Taney,  is  printed  in  5  Md.  Hist.  Mag.  33. 

37  Tyler,  p.  216. 

38  Tyler  saw  the  letters.  I  cannot  find  them  except  one  printed  in  13  Md. 
Hist.  Mag.  167. 

39  Letters  to  Van  Buren,  April  9,  1860, 10  Md.  Hist.  Mag.  16  to  22. 


ROGER  BROOKE  TANEY  161 

Taney  "feared  it  would  be  very  difficult  to  divert  him 
from  the  course  he  suggested."  Taney,  however,  felt 
it  his  "duty  to  remonstrate,  immediately  and  earnestly, 
against  it,"  calling  his  "attention  to  the  condition  of  the 
country,"  then  passing  through  the  darkest  days  of  the 
panic.  "We  were  in  no  condition  to  go  to  war;  if  it 
could  be  avoided."  France  was  much  better  prepared 
than  we  for  war.  Taney  further  "urged  that,  however 
unjustifiable  and  offensive  the  conduct  of  France  might 
be,  no  such  national  insult  had  been  offered  as  to  require 
immediate  hostile  action  to  maintain  our  honor,  and  that 
we  should  not  impair  our  rights,  by  forbearing,  for  the 
present,  to  assert  them  by  force  and  until  we  had  still 
further  tried  pacific  measures,  and  frank  remonstrances." 
McLane  differed  from  Taney,  and  "strongly  advised  the 
message,"  arguing  that,  while  there  was  no  "sufficient 
excuse  for  an  immediate  declaration  of  war,"  yet,  "as 
France  had  acknowledged  the  money  to  be  justly  due, 
and  had,  by  a  direct  vote  of  its  Legislature,  refused  to 
pay  it,  this  country,  by  the  law  of  nations,  had  a  right 
to  redress  itself,"  by  the  use  of  letters  of  marque  and 
reprisal,   and  that   "such  a  proceeding    was    not   war 

and  would  give  no  just  ground  for  war,  or 

complaint,  by  the  French  Government."  He  referred 
to  text  books  and  to  France's  recent  action  in  this  way 
toward  Portugal.  Taney  replied  that,  "although  letters 
of  marque  and  reprisal  were  not  War,  in  the  technical 
sense  of  the  word,  ....  yet  no  nation  that  felt 
itself  strong  enough  to  vindicate  its  honor  and  resent 
insult,  would  tamely  submit  to  such  an  indignity,  and 
that,  however  France  might  have  practiced  it  upon 
Portugal,  she  would  never  consent  to  have  it  practiced 
upon  herself,  nor  would  the  French  government  hazard 
its  existence,  by  permitting  such  a  wound  to  be  inflicted 


162  ROGER  BROOKE  TANEY 

Upon  the  national  pride,  without  resenting  it  by  a  decla- 
ration of  war,  or  immediate  hostilities."  Taney  per- 
ceived that  he  "had  failed  to  convince  the  President" 
and  "left  that  cabinet  meeting,  in  a  state  of  greater 
anxiety  and  alarm  than  I  have  ever  felt  at  any  other 
moment  in  my  public  life,"  as  he  wrote  Van  Buren  in 
1860.  He  felt  sure  that  Congress  would  not  authorize 
the  sending  out  of  privateers  against  France;  but  he 
feared  that  the  friends  of  the  Bank  would  be  able  to 
use  such  a  message  to  convince  the  country  that  Jackson 
"was  a  rash,  reckless  man,  acting  generally  from  the 
impulses  of  passion." 

If,  in  the  midst  of  such  distress  and  anxiety,  and  upon  such  a 
cause  of  quarrel,  he  recommended  a  measure,  which,  if  carried 
out,  would,  inevitably,  lead  to  immediate  hostilities  with  France, 
public  confidence  in  his  prudence  and  discretion  would  have  been 
greatly  shaken  and  the  panic  and  pressure  become  so  intense  and 
spread  so  widely,  that  his  administration  would  be  overthrown  in 
less  than  a  month,  and  the  Bank,  with  all  its  arrogance  and  open 
corruptness,  fastened  irrevocably  upon  this  country. 

"Not  one  man  in  a  thousand  of  the  people  of  the 
United  States  were  aware  of  any  serious  or  irritating 
difficulty  with  France,  that  would,  by  any  possibility, 
lead  to  immediate  hostility  on  either  side,"  and,  if  such 
a  "sudden  and  unexpected  war,  for  which  no  prepara- 
tions had  been  made,"  should  ensue,  the  "President 
would  be  held  responsible  for  all  the  evils  that  might 
follow"  it. 

Feeling  sure  that  Van  Buren's  "calm  and  sound  judg- 
ment" would  lead  him  to  concur"  in  Taney's  opinion 
upon  this  subject  and  "knowing  the  high  respect 
which  General  Jackson  held  for"  that  "judgment," 
Taney  promptly  secured  an  interview  with  him.  As 
Taney  anticipated.  Van  Buren  "took  the  same  view  of 


ROGER  BROOKE  TANEY  163 

the  subject,"  and  was  successful,  in  inducing  Jackson 
to  take  a  "calm  and  more  deliberate  view  of  the  whole 
subject"  and  to  abandon  his  projected  message.  In 
this  action,  Taney  undoubtedly  rendered  a  very  impor- 
tant public  service,  though  his  patriotic  motives  were 
mingled  with  fear  of  the  Bank. 

On  April  15,  1834,  Taney  wrote  a  letter  to  Polk,  the 
Chairman  of  the  Committee  of  Ways  and  Means  in  the 
House  of  Representatives,  which  letter  concerned 
further  legislation  concerning,  the  coinage,  and  was 
transmitted  by  Polk  to  the  House,  with  an  endorsement, 
stating  the  concurrence  of  the  Committee  in  the  posi- 
tions taken  by  Taney.'*®  Taney  began,  by  writing,  that 
"It  is  evident  that  the  chief  part  of  the  paper  currency 
of  the  United  States  must  always  be  furnished  by  the 
State  banks."  Congress,  in  his  opinion,  had  "no  power 
to  establish  by  law  a  paper  currency  and  the  influence 
which  they  may  lawfully  exercise  in  securing  its  sound- 
ness is  altogether  incidental."  These  are  the  views  of 
one  who  was  destined  long  to  be  Chief  Justice,  but  it 
will  be  remembered  that  the  Supreme  Court  finally,  in 
the  Legal  Tender  cases,  decided  otherwise.  Taney 
insisted  that  the  currency  then  was  "an  immense  super- 
structure of  paper,  resting  on  a  metallic  foundation — too 
narrow  to  support  it.  It  has  never  been  sustained  by 
its  own  inherent  strength,  but  by  public  confidence. 
With  very  few  exceptions,"  Taney  trust- 
fully thought  that  the  State  Banks  were  "safe  as  the 
Bank  of  the  United  States!  for  that  Bank  could  not 
redeem  all  its  notes  in  specie  if  presented  at  once!" 
In  fact,  that  Bank,  with  its  "great  money  power," 
probably  "aggravated  the  situation." 

"The  remedy  is  to  diminish  the  proportion"  of  paper 
to  coin  and  "to  give  to  the  paper  currency  a  broader  and 

*°  Cong.  Debates  23rd  Congress,  1st  Session,  Vol.  10,  Part  4,  App.  14. 


164  ROGER  BROOKE  TANEY 

firmer  metallic  foundation."  Taney,  therefore,  recom- 
mended that  (1)  there  be  reformation  in  the  coinage  of 
gold,  which  is  worth  more  than  silver,  and  is,  therefore, 
not  seen ;  (2)  that  the  issue  of  small  notes  be  prevented  by 
not  placing  public  money  in  any  bank,  nor  receiving  in 
payment  of  public  dues,  the  notes  of  any  bank,  which 
issued  notes  below  a  fixed  amount.  This  amount  should, 
at  present,  be  fixed  at  $5.00,  and  should  later  be  fixed 
at  $10.00,  and  eventually  at  $20.00.  Taney  could  not 
keep  the  United  States  Bank  out  of  mind,  and  held  it 
not  desirable  to  abolish  the  State  Banks,  or  to  place  the 
business  of  banking  in  a  monopoly  of  ''great  capitalists." 
State  Banks,  are  useful  for  investment  and  commerce, 
and  would  be  safe  with  more  metal  in  circulation. 
Drafts  and  bills  of  exchange  should  transfer  funds  from 
place  to  place  and  serve  as  institutions  of  credit.  The 
abolition  of  small  notes  would  save  the  laboring  classes 
from  failure  and  depreciation  of  paper.  The  States  in 
which  banks  are  located  can  control  them  and  prevent 
the  abuse  of  power  by  the  President  in  selecting  them.'*! 
With  the  diminished  tariff  duties  under  the  Compromise 
Act,  the  deposits  would  not  be  so  large  as  to  tempt  a 
bank,  or  its  stockholders,  "to  swerve  from  their  duty, 
or  to  influence  many  respecting  their  conduct  or 
opinions."  Congress  might  also  order  the  Secretary  to 
distribute  the  deposits  among  the  banks,  according  to 
the  capital  of  the  place  where  the  revenue  is  collected, 
and  to  demand  security  from  these  banks.  This  addi- 
tional duty  would  complicate  the  operations  of  the  De- 
partment, and  perhaps  make  it  necessary  to  employ  one 
or  two  more  clerks.     Clearly,  Taney  was  no  financier.^^ 

*^  One  wonders  how  this  was  to  be  done. 

*2  46  Niles  Reg.  145,  May  3,  presents  and  criticises  Taney's  views  as  to  the 
future  regulations  of  the  currency,  as  a  plan  which  will  encourage  new  banks, 
or  factories  of  paper  money. 


ROGER  BROOKE  TANEY  165 

Early  in  May,  the  Senate  called  on  Taney  for  a  report 
on  the  finances,  believing,  from  the  memorials  of  dis- 
tress, that  the  government  would  soon  be  without  ade- 
quate revenue,  and  would  have  to  resort  to  loans. 
Taney  sent  in  his  report  by  the  middle  of  June,  showed 
an  increase  in  every  branch  of  the  revenue,  and  thus 
foiled  the  plans  of  the  Whigs. 

The  Session  of  Congress  now  neared  its  close,  and 
Jackson,  in  accordance  with  the  plan  he  had  made  nearly 
a  year  before,  sent  Taney's  nomination  to  the  Senate  on 
June  23.  It  was  promptly  rejected  on  the  24th,  the 
first  such  rejection  in  the  country's  history.  Taney 
resigned  on  the  following  day^^  and  returned  to  the 
practice  of  the  law  in  Baltimore. 

<3  Tyler,  p.  221,  46  Niles  Reg.  326,  July  5,  1834.  His  house  in  Baltimore 
had  been  leased,  and  as  the  lease  did  not  expire  until  October,  Taney's  family 
remained  in  Washington  until  then  (8  Md.  Hist.  Mag.  306).  Mr.  Justice 
Wayne,  who  was  a  member  of  the  Supreme  Court  at  this  time,  in  his  eulogy  of 
Taney  after  his  death,  spoke  of  Taney's  course  in  the  Cabinet,  as  "sincere  and 
sustained  with  ability,"  of  his  arguments  as  Attorney  General,  as  "listened 
to  with  the  marked  attention  of  the  court"  and  of  his  briefs  as  "very 
comprehensive." 


CHAPTER  VIII 

Resumption  of  Law  Practice  (1834-1836) 

On  June  25,  1834,  the  day  after  the  Senate  refused  to 
confirm  his  nomination  as  Secretary  of  Treasury,  Taney 
resigned  the  office,  which  under  the  Constitutional  pro- 
vision, he  could  have  held  until  the  end  of  the  Session  of 
Congress.  He  held  that  it  was  due  to  Jackson  and  himself 
to  "conform"  to  the  Senate's  decision,  and  retire  at  once, 
and  took  the  occasion  of  his  letter  of  resignation  to  thank 
Jackson  for  ''many  and  continued  proofs  of  kindness  and 
confidence."^  Jackson  replied  at  once,  "paying  a  just 
tribute  to  the  patriotism,  firmness,  and  ability,"  which 
Taney  "had  uniformly  exhibited"  in  the  Cabinet. 
Jackson  recalled  with  gratitude  the  fact  that  the  post 
of  Attorney  General  was  not  desired  by  Taney,  as  it  was 
"in  opposition  to"  his  "course  of  Hfe,"  to  exchange  "the 
independence  of  professional  pursuits  for  the  labors  and 
responsibilities  of  the  office."  This  gratitude  had  been 
"greatly  and  deservedly  increased,"  when  Taney  learned 
"the  difficulties  which  surrounded  Jackson,"  and, 
yielding  to  his  "earnest  desire  to  avail"  of  Taney's 
"services  in  the  Treasury  Department,"  "generously 
abandoned  the  studies  and  avocations"  of  his  life,  and 
"encountered  the  responsibility  of  carrying  into  execu- 
tion," to  use  Jackson's  words,  "those  great  measures 
which  the  public  interest  and  the  will  of  the  people  alike 
demanded  at  our  hands.  For  the  prompt  and  disinter- 
ested aid"  thus  afforded  Jackson,  at  the  cost  of  "per- 
sonal sacrifices,"  the  President  felt  that  he  owed  Taney 
a  "debt  of  gratitude  and  regard,  which"  he  had  "not 

^  The  correspondence  is  printed  in  Tyler,  pp.  221-223. 

166 


ROGER  BROOKE  TANEY  167 

the  power  to  discharge."  Taney  had  "all  along  found 
support  in  a  consciousness  of  right,"  and  might  surely 
look  for  ** approbation  and  applause"  from  the  people. 
"The  plan  of  financial  policy  which  you  have  initiated 
by  your  acts,"  Jackson  continued,  "and  developed  in 
your  official  reports,  ....  will  ultimately,  I 
trust,  be  carried  into  complete  operation  and  its  bene- 
ficial results"  will  be  "more  than  an  adequate  compensa- 
tion for  the  momentary  injustice  to  which  you  have  now 
been  subjected."  In  the  grandiloquent  and  turgid 
rhetoric  of  the  period,  Jackson  concluded  the  letter, 
stating  that,  "as  it  is  the  martyrs  in  any  cause  whose 
memory  is  held  most  sacred,  so  the  victims  in  the  great 
struggle  to  redeem  our  Republic  from  the  corrupt  domi- 
nation of  a  great  moneyed  power,  will  be  remembered 
and  honored  in  proportion  to  their  services  and  their 
sacrifices." 

Taney  now  prepared  to  return  to  Baltimore,  and  resume 
the  practice  of  law.  His  entry  into  the  city  on  July  IP 
was  a  triumphal  one.  He  was  escorted  by  a  cavalcade  of 
about  200  gentlemen  and  seated  in  a  barouche  drawn 
by  four  grey  horses.  The  procession  repaired  to  the 
Columbia  Gardens,  where  Taney,  Thomas  Hart 
Benton,  and  Congressman  Allen  of  Ohio,  spoke,  until 
a  storm  of  wind  and  rain  from  the  north  carried  away 
the  awning  from  the  tables  and  completely  drenched 
the  company.  A  few  days  afterwards,  a  public  dinner 
was  given  Taney,  and  Vice  President  Van  Buren,  who 
was  unable  to  be  present,  sent  the  toast  "  Roger  B.  Taney 
— He  has  in  his  last,  best,  brilliant  career,  passed  through 
the  severest  ordeal  to  which  a  public  officer  can  be  sub- 
jected, and  he  has  come  out  of  it  with  imperishable 
claims  upon  the  favor  and  confidence  of  his  countrymen." 

2  Tyler,  p.  224,  46  Niles  Register,  Scharf  Chron.  of  Baltimore  471. 


168  ROGER  BROOKE  TANEY 

In  the  letter  which  accompanied  this  toast^  the  writer 
bore  witness  to  the  fact  that  ''an  unreserved  intercourse" 
with  Taney,  while  he  was  in  the  Cabinet,  enabled  Van 
Buren  to  "appreciate  his  intellectual  and  moral  worth 
and  his  unsurpassed  devotion  to  the  best  interests  of 
our  country." 

Shortly  before  leaving  Washington  for  Baltimore, 
Taney  wrote  Jackson  of  the  projected  reception  and 
dinner,  and  then  added:  "You  know  this  is  my  first 
trial  in  this  way,  and  I  am  not  sure  that  I  am  very  well 
fitted  for  such  scenes,  and,  under  any  other  circum- 
stances, would  excuse  myself.  But  at  present,  it  seems 
to  be  a  matter  of  duty,  and  is,  moreover — I  acknowl- 
edge— not  a  little  gratfying."  While  he  had  no  "desire 
to  be  a  table  orator,  yet"  he  "was  quite  willing  to  make 
a  speech"  at  the  dinner  proposed  to  be  given  him.^ 

Taney  took  the  opportunity  of  the  letter  to  testify 
that  Mr.  Gilpin  appeared  to  be  "eminently  qualified 
for  the  station"  of  Governor  of  Michigan  Territory, 
which  position  he  desired,  and  that  the  writer  should 
"feel  gratified  at  seeing  him"  obtain  the  ofiice.  Gilpin 
had  been  persecuted  by  the  Bank  and  its  adherents  and 
his  "services  and  firmness"  had  impressed  Taney  favor- 
ably. During  the  "severest  time  of  the  struggle," 
Taney  was  in  "constant  correspondence"  with  Gilpin, 
who  never  "wavered." 

»  Tyler,  p.  225. 

*In  the  same  letter,  he  referred  to  the  Bank's  correspondence  with  the 
New  York  Committee  and  with  the  Senate  Committee  of  Finance,  as  "ex- 
traordinary acts  of  folly.  The  admission  that  they  contain,  the  curtailment 
until  they  found  that  Congress  would  do  nothing  for  them,  is  perfectly  true. 
But,  as  they  do  not  mind  the  truth  when  it  stands  in  their  way,  I  wonder  they 
should  have  taken  pains  to  publish  what  ought  to  ruin  and  disgrace  them,  if 
there  was  no  other  proof  on  the  subject.  Their  agreement  to  open  everything 
to  the  Senate's  Committee,  composed  as  it  is,  is,  if  possible,  worse  after  the 
ground  taken  with  the  Committee  of  the  House." 


ROGER  BROOKE  TANEY  169 

Taney  and  his  family  had  just  returned  from  a  Httle 
excursion  to  Harper's  Ferry  with  Van  Buren,  who  was 
well  received,  and  "saluted  according  to  his  rank."  "  In 
the  evening,  a  volunteer  band  of  music  of  young  mechan- 
ics, waited  upon  him  and  played  many  patriotic  airs." 
Taney  was  satisfied  that  Van  Buren  would  "gain  more 
and  more  favour,  as  he  mixes  more  with  the  people." 

Frederick,  Taney's  former  residence,  vied  with 
Baltimore  in  the  effort  to  do  Taney  honor,  and  tendered 
to  him  a  public  dinner  on  August  6.  Francis  Thomas, 
the  Representative  of  Western  Maryland  in  Congress, 
welcomed  him,^  speaking  of  the  audience  as  composed 
of  "Jackson  Republicans."  Taney's  reply  expressed  his 
gratification  for  the  honors  with  which  he  had  been 
received  by  his  "fellow  citizens"  of  Frederick  City  and 
County.     Then  he  said  that 

I  lived  so  many  years  in  the  midst  of  them  and  that  residence 
is  endeared  to  me  by  so  many  cherished  recollections,  that  I 
never  find  myself  approaching  Frederick,  without  feeling  as  if 
I  were  again  bending  my  footsteps  to  my  own  home,  again  to 
dwell  in  the  midst  of  a  people,  whose  long  continued  kindness 
to  me  I  can  never  forget  and  shall  warmly  and  gratefully  bear  in 
my  memory  to  the  latest  hour  of  my  life. 

When  he  became  Attorney  General,  most  of  the 
people  of  the  United  States  were  strangers  to  his  name, 
he  said,  for  he  had  never  been  in  Congress.  The  office 
of  Attorney  General  does  not  make  one's  name  a  familiar 
one.  Consequently,  when  attacks  were  made  upon  him, 
he  could  not  appeal  to  the  previous  knowledge  of  persons 
outside  of  Maryland.  Mary  landers  alone  knew  his 
"long  life  passed  in  the  honest  endeavor  to  discharge,  to 
the  best  of  my  powers,  my  duties,  as  a  man  and  a 

6  46  Niles  Register,  August  30, 1834.    Tyler,  p.  226. 


170  ROGER  BROOKE  TANEY 

citizen."  A  "great  moneyed  corporation"  had  entered 
politics  and  was  preparing  to  obtain,  *'by  means  of 
money,  an  irresistible  influence  in  the  affairs  of  this 
nation."  If  it  should  have  succeeded,  "the  liberators 
of  the  country  would  soon  be  destroyed "  and  "the  power 
of  self-government  would  be  wrested  from  the  people." 
His  tenure  of  the  Secretaryship  of  the  Treasury  had 
brought  upon  him  "a  deep  and  enduring  spirit  of  hos- 
tility," and  that  spirit  pursued  him  "with  unwearied 
perseverance."  "  No  man,"  Taney  believed,  "who  has  at 
any  period  of  the  world  stood  forth  to  maintain  the  liber- 
ties of  the  people  against  a  moneyed  aristocracy  grasping 
at  power,  has  ever  met  with  a  different  fate.  Its  unrelent- 
ing, unquenchable  hate  has  never  failed  to  pursue  him 
to  the  last  hour  of  his  life,  and  even  in  his  grave."  The 
political  feeling  of  the  times  ran  so  high  that  even  so  intel- 
ligent a  man  could  believe  that  such  a  statement  was  the 
truth,  and  Taney  was  too  honest  to  have  said  what  he 
did  not  believe.  He  felt  that  he  could  appeal  to  Mary- 
land men,  especially  to  the  inhabitants  of  Frederick 
among  whom  he  had  lived  for  twenty-two  years,  and  he 
closed  his  speech  with  an  eulogy  of  Thomas's  course  in 
the  House  of  Representatives  in  regard  to  the  United 
States  Bank. 6 

After  these  remarks,  Taney  went  to  the  Court  House 
Square,  where  seventeen  tables  had  been  spread  and 
where  he  dined  with  hundreds  of  those  who  had  listened 
to  him. 

Even  at  that  time,  Taney's  former  Federalism  was 
recalled,  and  it  was  said^  that  "no  one  will  pretend  to  say 
that"  Taney  or  McLane  was  a  Democrat.     "The  party 

^  Tyler,  p.  233,  wrote  that  Taney  considered  this  compliment  of  the  citizens 
of  Frederick  as  "one  of  the  glories  of  his  life."  Taney  sent  Van  Buren  a  copy 
of  this  speech,  asking  for  his  opinion  upon  it.    8  Md.  Hist.  Mag.  305. 

'  47  Niles  Register,  September  13, 1834. 


ROGER  BROOKE  TANEY  171 

distinctions  were  kept  up  in  Delaware  and  Maryland  a 
long  while  after  they  had  been  exploded  in  every  other 
State,  and  these  gentlemen  were  the  heads  of  the  Federal 
party  in  their  respective  States  for  several  years  after 
General  Jackson  had  recommended  the  destruction  of 
the  monster-party  spirit  to  President  Monroe." 

A  third  public  dinner  was  given  Taney  at  Elkton,  on 
September  4.^  Many  of  the  subscribers  were  unknown 
to  Taney,  a  fact  which  made  the  dinner  to  be  considered 
a  greater  honor  to  him.  He  told  the  audience  again  of 
the  greed  and  hatred  of  the  "moneyed  aristocracy," 
and  of  his  acceptance  of  the  Secretaryship  through  hard 
necessity.  He  believed  that  the  plans  had  been  delib- 
erately formed  to  place  the  money  concerns  of  the  coun- 
try in  such  a  situation  that  it  would  be  in  the  power  of 
that  great  monopoly,  the  Bank  of  the  United  States,  to 
rule  or  ruin  this  noble  people."  As  Attorney  General, 
Taney  had  advised  the  removal  of  the  deposits,  never 
expecting  to  carry  out  that  device,  but  he  found  that 
either  the  measure  must  be  abandoned  and  that  "a 
great  moneyed  corporation  would  fix  its  deadly  fangs  in 
the  free  and  glorious  people,"  or  the  President  must, 
"immediately,  fill  the  Treasury  Department  with  a 
Secretary,  whose  opinions  concurred  with  his  own." 
Taney  continued:  ''I  could  not,  without  dishonor, 
shrink  from  the  responsibility  of  executing  what  I  had 
advised  should  be  done."  He  understood  that  his 
nomination  as  Secretary  of  the  Treasury  had  been 
"rejected  by  a  silent  vote,"  yet  Webster,  who  had  given 
one  of  these  votes,  had  followed  Taney  "with  the  spirit 

8  Tyler,  p.  233,  47  Niles  Register,  October  18,  1834.  Taney  explained  this 
attack  on  Webster  when  writing  Van  Buren  on  September  16,  8  Md.  Hist. 
Mag.  306.  Taney  said  Van  Buren's  letter  to  him  had  been  opened  in  his 
absence  and  forwarded  to  him  as  "my  folks  at  home  have  a  license  to  open 
my  letters  when  I  am  away." 


172  ROGER  BROOKE  TANEY 

of  hostility  in  private  life"  and  had  spoken  of  him  at 
Salem  as  the  "pliant  instrument  of  the  President,  ready 
to  do  his  bidding."  Taney  was  not  content  with  a 
defence.  He  attacked  Webster,  who  had  "found  the 
bank  a  profitable  client." 

Taney  then  continued  his  usual  offensive  against  the 
"bank,  chartered  by  Congress,  acting  towards  the  people 
of  the  United  States  in  the  spirit  and  temper  of  a  foreign 
enemy."  Jackson's  conduct  had  not  caused  the  evils, 
but  the  "powerful  corporation,  and  those  who  defend  it 
seem  to  regard  it  as  an  independent  sovereignty  and 
have  forgotten  that  it  owes  any  duties  to  the  people,  or 
is  bound  by  any  laws  but  its  own  will."  He  recited  the 
stock  charges  against  the  bank,  and  then  continued: 
"It  is  not  in  the  nature  of  a  moneyed  power  to  compre- 
hend the  feelings  of  independent  Freemen."  The  Bank 
had  not  rightfully  regulated  currency.  Gold  should  be 
currency,  and  was  such  before  the  Bank  was  chartered. 
Taney  felt  that  one  of  his  proudest  recollections  would 
be  that,  while  he  was  Secretary  of  the  Treasury,  measures 
were  started  which  will  restore  gold  currency,  and  rescue 
the  people  "from  the  power  of  a  heartless  moneyed 
corporation."  He  praised  Benton  and  Jackson,  who  had 
been  foremost  in  the  struggle  against  the  Bank  and  "in 
the  measures  for  maintaining  union."  The  Bank  is 
"now  the  great  question." 

Taney  was  an  "inordinate  smoker  of  cigars"  and  two 
boxes  of  his  favorite  brand  were  sent  him  while  he  was 
Secretary  of  the  Treasury®  by  Mr.  Samuel  Thomas, 
formerly  of  Baltimore,  who  w^as  then  connected  with 
Custom  House  at  New  York.  Taney  did  not  know  who 
the  donor  was.     About  the  time  that  he  left  the  Cabinet, 

9  Tyler  p.  235. 


ROGER  BROOKE  TANEY  173 

he  learnt  from  whom  the  cigars  came,  and  his  high  sense 
of  official  integrity  was  such  that  he  sat  down  at  once 
and  wrote  Mr.  Thomson  that  he  could  not  accept  the 
cigars  as  a  present,  but  would  be  glad  to  keep  them  and 
pay  the  market  value  of  the  cigars.  Courteously,  Taney 
insisted  that  Mr.  Thomson  "must  not  feel  any  mortifi- 
cation" at  this  act 

But  it  has  been  a  fixed  rule  with  me  to  accept  of  no  present, 
however  trifling,  from  any  one,  the  amount  of  whose  compensation 
for  a  public  service  depended  on  the  department  over  which  I 
presided.  You  will,  perhaps,  smile  at  what  you  may  think  my 
fastidiousness  about  such  a  trifle  as  your  cigars.  But  I  have 
thought  it  the  true  rule  for  a  public  man,  and  that  it  ought  to  be 
inflexibly  adhered  to  in  every  case,  and  without  any  exceptions  in 
the  smallest  matters.  And  having  constantly  acted  upon  it, 
I  cannot  consent  to  depart  from  it  in  this  case,  and  trust  that  you 
will  not  suspect  me  of  doubting  for  a  moment  the  kindness  and 
integrity  of  the  motive  which  influenced  you  to  send  them. 

Mr.  Thomson  replied  that  he  thought  Taney  "almost 
fastidious"  and  felt  that  the  rules  which  might  have 
guided  Taney  as  Secretary  of  the  Treasury  did  not  apply 
to  Taney  as  a  private  citizen;  but  that,  if  his  "fine 
feelings  and  independent  spirit  will  not  allow  this,  he 
might  return  the  cigars"  or  send  their  value,  ten  dollars. 
In  a  very  polite  note,  Taney  enclosed  that  amount  of 
money,  and  added  that  "I  hope  that  you  do  not  doubt 
that  I  feel  as  much  obliged  by  your  kind  intentions,  as 
if  I  had  accepted  them  as  a  present." 

On  October  12,  Taney  wrote  from  Baltimore,  to  Jack- 
son, at  the  end  of  a  two  weeks'  illness,  which  had  made 
him  unable  to  bear  the  journey  to  Washington,  in  order 
to  congratulate  Jackson  upon  his  safe  return  thither. 
At  the  time  of  writing,  Taney  was  compelled  to  be  in 
court  by  professional  duties,  although  he  was  hardly  fit 


174  ROGER  BROOKE  TANEY 

to  attend  to  business.  He  was  "mortified  and  disap- 
pointed" by  the  "total  defeat"  of  the  Democrats  in  the 
recent  election  in  Baltimore  City  and  throughout 
Maryland.     Taney  explained : 

The  truth  is  that  our  friends  saw  that  there  had  been  such  a 
decided  reaction  in  favor  of  the  administration  since  the  last 
spring,  and  that  our  friends  were  so  much  excited  and  roused  that 
they  counted  on  carrying  the  elections  by  the  mere  force  of  public 
opinion.  There  was  no  party  organization  of  the  least  value  on 
our  side.  But  on  the  side  of  the  adversary,  there  was  the  most 
complete  party  arrangements  and  discipline  and  carried  out  in 
such  detail  that  it  reached  every  man  in  the  State  who  could  in 
any  way  be  influenced.  They  have  spent  enormous  sums  of 
money  for  the  Bank  and  the  entire  moneyed  interest  of  Baltimore 
were  determined,  cost  what  it  would,  to  wreak  their  vengeance 
on  me  and  to  procure  such  a  result  in  Maryland  as  would  be  most 
mortifying  to  me,  and  such  as  they  hope  may  affect  my  character 
and  standing  in  other  States. 

Taney  anticipated  "a  like  hostility  to  me  in  my  pro- 
fessional pursuits."  However,  "we  shall  renew  the 
contest  with  vigor"  and  hope  to  regain  the  State  before 
the  Presidential  election  of  1836.  Taney  had  sublime 
certainty  that  he  was  right.  "The  march  of  public 
opinion  may  be  checked  for  a  time  by  the  profuse  expen- 
diture of  money  and  the  vehement  exertions  of  the 
adversary.  But  I  have  unshaken  confidence  in  the 
virtue  and  intelligence  of  the  people,  and  am  quite  sure 
that  they  will  soon  come  right.  How  fortunate  it  is  that 
you  brought  on  the  contest  early!  It  is  so  manifest 
that,  if  it  had  been  delayed  until  the  charter  expired  and 
the  sufficiency  of  the  State  Banks  had  not  been  proved 
by  actual  experience  in  the  meantime,  the  Bank  could 
have  ruined  the  country,  or  have  extorted  a  recharter." 


ROGER  BROOKE  TANEY  175 

Taney  rejoiced  that  Mr.  Woodbury,  his  successor, 
would  be  able  to  pay  off  the  entire  balance  of  the  national 
debt,  after  ''all  the  claims  of  public  distress  and  failing 
revenue."  Taney  thought  it  would  be  a  "memorable 
item  for  the  next  presidential  message,"  and  that  it 
was  the  first  time  in  the  history  of  nations  that  a  large 
public  debt  was  entirely  extinguished.  He  closed  his 
letter  with  a  quaint  prophecy:  ''When  we  are  clear  of  a 
National  Debt  and  a  National  Bank,  the  Republic  will 
be  safe!" 

The  public  men  of  the  day  wrote  orations  to  each 
other,  under  the  guise  of  private  letters.  On  October  20, 
he  wrote  Jackson  a  second  letter,  in  answer  to  one  sent 
him  on  the  13th,  not  yet  being  well  enough  to  come  to 
Washington.  Jackson  had  learned  from  Taney's 
"amiable  family"  that  he  expected  to  come  to  Washing- 
ton, but  now  was  informed  that  he  would  not  come 
before  the  return  of  his  family  to  Baltimore,  and  wrote 
to  express  regret  at  this  decision,  as  he  wished  to  consult 
Taney  concerning  his  message.  He  also  asked  for 
Taney's  opinion  as  Attorney  General  on  the  United 
States  Bank's  claim  for  damages,  and  closed  by  saying: 
"Nothing  will  afford  me  more  pleasure  (than)  to  see  you 
as  a  private  friend,  and  shake  you  by  the  hand.  You 
have  my  warmest  friendship  and  most  ardent  wishes 
for  your  prosperity  and  happiness  thro'  life  and  that  of 
your  amiable  family."i« 

A  severe  cold  caught  by  Taney  at  Elkton,  had  been 
followed  by  rheumatism,  and  he  could  not  move  with- 
out pain,  while  his  recovery  was  retarded  by  his  neces- 
sary daily  attendence  upon  court.  He  continually 
pictured  himself  as  a  martyr:  "In  the  vindictive  spirit 
which  prevails  towards  me,"  he  wrote  Jackson,  "among 

io4Md.Hist.  Mag.  303. 


176  ROGER  BROOKE  TANEY 

many  of  the  moneyed  men  of  the  place,  I  am  obliged  to 
give  strict  attention  to  my  professional  concerns,  in 
order  to  sustain  myself  against  the  influence  which  is 
seeking  to  prevent  me  from  reestablishing  my  former 
practice."  He  hoped  to  come  to  Washington  early  in 
November,  and  would  prepare  another  opinion  on  the 
Bank's  damages  on  the  French  bill,  if  the  one  cannot 
be  found  which  he  had  previously  given  to  a  member  of 
the  Committee  of  Ways  and  Means  of  the  House  of 
Representatives.  The  Democratic  successes  in  elections 
in  Pennsylvania  and  New  Jersey  pleased  him,  as  did  the 
fact  that  the  Senate  would  soon  cease  to  have  an  anti- 
administration  majority.  The  Bank  and  its  partisans 
have  been  more  successful  in  Maryland  than  they  are 
likely  to  be  anywhere  else,  and  peculiar  exertions  were 
no  doubt  made  here,  as  a  mark  of  their  especial  favour 
to  me."  He  was  very  hopeful  for  the  future,  and  con- 
tinued: "I  am  satisfied  that,  in  less  than  a  twelve- 
month from  this  time,  the  opposition  will  be  over- 
whelmed and  broken  to  pieces  by  the  force  of  public 
opinion,"  and  the  "whigs"  will  have  to  ''rack  their 
powers  of  invention  to  find  out  some  new  name  and  will 
be  as  glad  to  disavow  their  connection  with  the  Bank." 

Jackson  wrote  again  on  November  8,  rejoicing  over 
the  result  of  the  election  in  New  York,  and  that  Taney's 
health  was  improving  and  urging  him  to  ''Remember 
I  have  a  bed  and  room  for  you.''^^ 

Taney  wrote  Van  Buren  on  September  16,  1834,  con- 
cerning his  Elkton  speech,  and  concerning  the  doubtful 
political  prospects  in  Maryland. ^^  Qn  March  25,  1835, 
he  wrote  Van  Buren  again  on  the  political  outlook,  and 
on  a  vindication  which  Van  Buren  had  prepared  of  his 

11  4  Md.  Hist.  Mag.  304. 

12  8  Md.  Hist.  Mag.  305. 


ROGER  BROOKE  TANEY  177 

instructions  to  McLane — a  paper  which  Taney  regarded 
as  "conclusive."  He  felt  more  sanguine  in  writing  a 
third  letter  to  Van  Buren  on  May  12,  for  he  found  the 
appointment  of  Amos  Kendall  as  Postmaster  General 
was  popular,  and  the  Virginia  elections  had  resulted 
favorably  to  the  Jackson  candidates.  Benton's  effort 
to  "expunge"  the  Senate's  resolution  condemning  Jack- 
son and  Taney,  pleased  the  latter  greatly,  and  he  thought 
of  "writing  the  history  of  the  period,  with  names  and 
things  at  full  length  and  in  plain  words." 

Still  another  letter,  congratulating  Van  Buren  upon 
his  nomination  for  the  Presidency,  was  written  him  by 
Taney,  on  June  2,  1835.  He  had  a  more  serious  inten- 
tion of  writing  the  history  of  Jackson's  Bank  policy,  and 
asked  Van  Buren 's  advice  in  the  matter. 

So  late  as  November  20,  Taney  had  not  been  able  to 
go  to  Washington.  The  New  York  elections  were 
"gratifying"  beyond  his  hopes.  After  such  a  "decisive 
and  final"  popular  verdict,  Taney  vainly  hoped  that 
"we  shall  now  have  peace  for  many  years.  The  ques- 
tion of  the  successions^  is  already  decided  and  it  would 
be  amusing  enough  to  witness  the  meeting  of  the  chief 
panic  makers,  when  they  come  together  at  the  approach- 
ing session  of  Congress."  He  thought  that  the  "Bank 
partizans"  might  now  become  "less  clamorous"  and 
"feel  that  they  have  had  enough  of  the  war."^^ 

Whether  Taney  was  right  or  not,  in  thinking  there  was 
a  concerted  attempt  to  prevent  his  professional  career 

'3  To  the  Presidency. 

^^  In  this  letter,  Taney  referred  to  an  outbreak  of  cholera  in  Baltimore,  con- 
veyed the  best  wishes  of  "Mrs.  Taney  and  the  girls,"  and  expressed  the  feeling 
that  Secretary  Woodbury's  movement  on  the  Branch  Bank  is  a  "proper  step 
toward  the  winding  up  of  the  Bank,  and  the  time  for  it  has  been  well  and  ju- 
diciously chosen."  Taney  added  that  "The  public  mind  is,  I  have  no  doubt, 
ready  to  sustain  him." 


178  ROGER  BROOKE  TANEY 

being  a  successful  one,  it  is  certain  that  he  had  not  in 
the  higher  courts  as  large  a  practice  as  he  enjoyed  before 
entering  the  Cabinet. ^^  In  1835,  he  lost  the  only  case 
he  argued  in  the  Supreme  Court,  ^^  in  which  Kennedy  and 
Meredith  opposed  him. 

In  1834,  he  argued  in  the  Maryland  Court  of  Appeals, 
one  case,^^  and,  in  1835,  he  appeared  as  counsel  in  five 
cases.  1^  The  last  of  these  has  some  interest,  and  dragged 
over  several  years,  the  bill  having  been  filed  in  1828. 
An  Irishman  died  intestate  without  heirs  in  Frederick 
County,  and  Taney  opposed  the  receiving  of  his  es- 
cheated estate  by  the  Frederick  County  School,  of  whose 
Board  of  Trustees  he  had  formerly  been  president.  Dur- 
ing the  trial  of  the  suit,  the  School,  which  was  a  County 
Academy  for  boys  until  it  was  closed  in  1915,  changed  its 
name  to  Frederick  College,  by  legislative  amendment  of 
its  charter.  This  case,  which  again  connects  Taney 
with  Frederick  and  which  he  lost,  seems  to  have  been 
the  last  one  which  he  ever  argued  in  a  court  of  last 
resort. 

1^  We  find  a  written  opinion  in  the  New  York  Public  Library,  dated  January 
17,  1835,  as  to  the  rights  of  Stockton  and  Stokes  to  the  contract  made  on  Octo- 
ber 15, 1831,  to  carry  the  mail  from  Baltimore  to  Washington  and  Philadelphia. 

^^  Ortitique  v.  D'Arcy.    9  Peters  692.    A  case  in  assumpsit. 

*^  State  V.  Bank  of  Md.  6  G.  and  J.  205.  Taney,  Dixon,  and  Price  v.  Reverdy 
Johnson  and  McMahon.  Taney  lost.  Preference  for  the  State  asked  in  the 
debts  of  an  insolvent. 

^8  Duvall  V.  Farmer's  Bank  7  G.  &  J.  44.  Taney  and  Boyle  against  Alexan- 
der, Magruder,  and  Reverdy  Johnson.  The  case  was  upon  a  promissory  note 
and  came  up  from  Anne  Arundel  County.  Taney  won  it.  (2)  Farmer's 
Bank  v.  Duvall;  7  G.  and  J.  78.  Magruder  and  Reverdy  Johnson  against 
Taney  and  Boyle.  The  case  was  from  Prince  George's  County  upon  an 
endorser's  liability,  and  Taney  won  it.  (3)  Boteler  v.  State.  7  G.  &  J.  109,  a 
suit  for  debt,  from  Prince  George's  County,  which  Taney  and  Pratt  lost  to 
Reverdy  Johnson  and  Magruder.  (4)  Berrett  v.  Oliver,  7  G.  &  J.  191,  a  suit 
in  Chancery  to  have  deeds  annulled,  which  Taney  and  G.  H.  Steuart  lost  to 
Alexander  and  Reverdy  Johnson.  (5)  Thomas  v.  Frederick  County  School, 
7  G.  &  J.  369.  Taney,  William  Schley,  and  Balch  lost  the  case  to  Ross  and 
Reverdy  Johnson. 


ROGER  BROOKE  TANEY  179 

Gabriel  Duvall,  before  whom  Taney  argued  his  first 
case  in  the  Mayor's  Court  of  Annapolis,  was  appointed 
Associate  Justice  of  the  Supreme  Court  of  the  United 
States  in  1811.  In  old  age,  he  was  violently  opposed  to 
President  Jackson;  but,  when  he  was  told  by  Thomas 
William  Carroll,  Clerk  of  the  Supreme  Court,  that  Taney 
would  be  appointed  to  the  vacancy  if  Duvall  resigned^^ 
the  aged  Justice  determined,  in  January,  1835,  to  leave 
the  Bench. 

President  Jackson  nominated  Taney  to  fill  the  place, 
and  the  venerable  Chief  Justice  Marshall,  although  he 
had  a  particular  dislike  to  Jackson  and  his  policies, 
privately  advocated  confirmation  of  the  nomination.^o 
In  spite  of  this  fact,  when  the  nomination  was  brought 
up,  at  the  last  moment  of  the  Session  of  the  Senate,  it 
was  indefinitely  postponed,  and,  consequently,  Taney 
met  rejection  at  the  hands  of  that  body  for  the  sec- 
ond time. 

Taney's  intimate  relations  with  Jackson  continued 
throughout  the  year  1835,  and,  on  November  21,  the 
former  submitted  to  the  President  a  long  opinion,^! 
opposing  any  charge  on  deposits  in  State  Banks,  as  pro- 
posed by  Secretary  Woodbury.  The  Bank  of  the 
United  States  had  paid  none.  Taney  argued  that: 
(1)  it  was  wrong  in  principle  to  collect  money  from  the 
many  to  lend  it  out  to  the  few  to  enable  them  to  specu- 
late; (2)  it  would  "endanger  the  purity,  or  hazard  the 
loss  of  the  public  money,  for  if  the  rate  be  low,  it  would 
be  a  favor,"  and,  if  the  money  were  given  to  the  highest 
bidder  as  to  interest,  ''a  needy,  unsafe  corporation" 
would  get  it;  (3)  the  legal  effect  would  be  a  formal  loan 

1"  Tyler,  p.  239. 

2<»Tyler,  pp.  240-241. 

21  Written  by  Taney  on  the  eve  of  going  to  Annapolis  to  try  a  case  there. 


180  ROGER  BROOKE  TANEY 

of  public  money,  for  it  would  be  loaned  to  banks,  who, 
instead  of  having  millions  to  produce  when  called  for, 
would  be  debtors  for  millions.  The  right  to  loan  out 
public  money  by  banks  had  never,  and  should  not  be, 
admitted.  They  do  so  on  "their  own  responsibility." 
If  the  banks,  when  asked  for  money,  should  reply  it  was 
loaned,  the  Government  would  reply  it  was  "a  mere 
deposit — a  trust  in  your  hands."  Then  it  would  be  a 
bncach  of  faith,  so  to  treat  the  Government's  money 
that  it  could  not  be  returned,  when  the  public  might 
want  it.  A  payment  of  interest  implies  a  right  to  loan 
the  money  upon  which  the  interest  is  paid.  The  only 
advantage  gained  by  a  bank  would  be  to  ''allow  it  to 
trade  freely  and  with  less  reserve,  upon  its  own  means." 
It  is  not  ''safe  to  stimulate  the  deposite  banks  to  trade 
largely  upon  the  public  money." 

A  fourth  argument  is  that  the  "deposite  banks"  kept 
large  balances  in  the  hands  of  other  institutions  of  good 
credit.  They  could  not  do  this,  but  must  "rigidly 
exact  these  balances,"  if  interest  were  charged  upon  the 
deposits. 

In  the  fifth  place,  if  the  Federal  money  were  all  loaned 
out,  "the  deposite  banks  would  be  no  stronger  than  other 
banks,  in  case  a  run  was  made  upon  them,  and  so  they 
could  not  support  public  credit.  The  fact  that  they  held 
public  money  in  their  vaults,  would  be  of  great  value 
in  averting  a  panic." 

His  last  head  was  that,  if  interest  were  paid  on  the 
deposits,  no  further  service  to  the  public  could  be  ex- 
pected of  banks,  yet  the  Government  needs  other  impor- 
tant services,  in  domestic  exchange  and  in  bringing  gold 
into  circulation. 

Taney  thought  that  the  Bank  of  the  United  States  had 
not  given  up  hope  of  a  recharter.     The  "struggles  of 


ROGER  BROOKE  TANEY  181 

moneyed  aristocracy  to  obtain  power  never  cease  and 
never  can  be  expected  to  cease,  until  the  nature  of  man 
be  changed."  The  Bank's  partisans  hoped  to  embarrass 
the  Deposit  Banks  and  destroy  their  usefulness,  Taney 
believed,  under  pretence  of  regulating  them.  He  trusted 
that  Jackson's  friends  would  not  be  deceived.  After 
two  years  from  the  removal  of  the  deposits  from  the 
United  States  Bank,  Taney  maintained  that  the  measure 
*'has  succeeded  to  the  extent  of  our  sanguine  expecta- 
tions," and  that  no  new  regulations  were  needed. 
Instead  of  the  predicted  bankruptcy,  it  was  gratifying  to 
see  a  ''prosperous  country  and  an  overflowing  treasury." 

In  January,  1836,  Taney  was  invited  to  a  public  dinner 
to  be  given  in  Cincinnati,  in  celebration  of  the  expira- 
tion of  the  charter  of  the  United  States  Bank.  Unable 
to  attend  the  dinner, 22  he  sent  this  toast:  "The  gold 
coins — long  exiled  from  our  country  for  the  benefit  of 
the  few — they  are  now  returning  for  the  benefit  of  the 
many." 

Chief  Justice  Marshall  died  in  the  summer  of  1835. 
Mr.  Justice  Story  would  have  been  promoted  to  the 
vacant  post,  if  fitness  had  been  the  only  consideration. 
But  Jackson  believed  in  Taney's  ability,  felt  that  he 
must  vindicate  his  friend  from  the  assaults  which  had 
been  made  upon  him,  and  wished  to  reward  the  political 
service  which  Taney  had  rendered  him.  During  the 
autumn,  there  were  rumors  that  Taney  would  be  ap- 
pointed and  these  rumors  were  confirmed  when  Taney's 
nomination  was  sent  to  the  Senate  on  December  28.^3 

In  the  past  year,  the  political  character  of  the  Senate 
had  considerably  changed,  but  Taney's  chief  opponents 
were  still  there  and  endeavored,  with  great  determina- 

"  Tyler,  p.  242. 

»  Tyler,  pp;  249-252.    49  Niles  Register. 


182  ROGER  BROOKE  TANEY 

tion,  to  prevent  a  confirmation  of  the  nomination.  Clay 
and  Webster  led  the  opposition,  but  the  nomination  was 
finally  confirmed  on  March  15,  1836,  by  a  majority  of 
14  votes.  Twenty-nine  senators  voted  for  confirma- 
tion and  two  of  them  are  said  to  have  been  once  those 
who  voted  against  him,  when  nominated  as  Secretary  of 
the  Treasury.24  In  later  years,  another  of  his  opponents 
changed  his  opinion, ^^  for  Clay  told  Reverdy  Johnson 
that  he  found  Taney  so  good  a  Chief  Justice  that  he 
asked  for  an  interview  with  him,  and,  at  that  time,  said : 

Mr.  Chief  Justice,  you  know  that,  in  my  place  in  the  Senate, 
before  your  nomination  to  the  office  you  now  fill  was  submitted  to 
that  body,  as  well  as  during  its  consideration,  I  said  many  harsh 
things  of  you.  At  the  time,  I  thought  they  were  called  for  by  my 
duty  to  the  Senate  and  to  the  country,  and,  under  like  circum- 
stances, with  no  other  knowledge  of  you  than  I  then  possessed,  I 
should  pursue  the  same  course.  But  I  now  know  you  better. 
I  have  carefully  and  anxiously  watched  your  career  on  the  bench 
and  have  sometime  since  become  satisfied  that  I  had  done  you 
injustice.  I  am  now  convinced  that  a  better  appointment  could 
not  have  been  made,  and  that  the  ermine,  so  long  worn  and  honored 
by  Marshall,  has  fallen  on  a  successor  (what  higher  praise  could  I 
give  you?)  every  way  his  equal  and  I  have  sought  this  interview 
so  to  say  to  you. 

Johnson  added  that  the  "mutual  confidence"  thus 
established,  continued  to  the  last. 

In  1835,  on  account  of  the  failure  of  certain  banks  in 
Baltimore  and  the  acerbity  of  feeling  thereby  aroused, 
a  mob  sacked  the  house  of  Reverdy  Johnson  and  of 
some  other  gentlemen   connected  with   these   banks. ^^ 

2*  Van  Santvoord,  "Lives  of  the  Chief  Justices,"  p.  565. 

25  Reverdy  Johnson's  remarks  in  meeting  of  Baltimore  Bar  after  Taney's 
death. 

26  See  Steiner's  "Life  of  Reverdy  Johnson,"  p.  14. 


ROGER  BROOKE  TANEY  183 

Taney  "at  once  took  a  decided  stand^^  against  the  out- 
rage and  the  resentment;  and  maintained  that  the  suf- 
ferers from  the  mob  were  entitled  to  an  indemnity  for 
their  losses  from  the  City  of  Baltimore,  which  was 
bound  to  protect  every  member  of  the  community  from 
violence  by  other  members  of  the  same  community.'^ 
By  his  advice,  a  petition  was  sent  up  to  the  Legislature, 
asking  for  indemnity.  Mr.  Taney  prepared  himself  to 
argue  the  question  before  the  Legislature,  but  was  pre- 
vented from  doing  so,  because  he  had,  in  the  meantime, 
been  nominated  for  Chief  Justice." 

Taney  did  not  hesitate  to  give  Johnson  his  "profes- 
sional aid,  as  soon  as  he  asked  for  it,"  both  because 
Taney  felt  that  he  owed  Johnson  much  "  for  the  prompt- 
ness with  which  he"  at  Taney's  "request,  investigated 
the  affairs  of  the  Union  Bank,  and  saved  me  from  the 
treachery  of  Ellicott"  and  also  to  show  that  he  "did  not 
sanction  the  disreputable  design"  of  influencing,  by  a 
mob,  a  trial  in  court,  nor  "countenance  the  still  more  rep- 
rehensible scheme  of  associating  the  name"  of  the  Demo- 
cratic party  with  any  mob  for  the  destruction  of  prop- 
erty. He  wrote  Van  Buren  to  this  effect  on  March  7, 
1836,  and  stated  also  that  attempts  had  been  made  to 
intimidate  him  from  coming  to  Annapolis,  to  perform 
his  duty,  and  asked  that  his  nomination  be  not 
confirmed,  until  this  argument  was  over.  An  im- 
mediate confirmaticn  might  look  as  if  Taney's  "friends 
had  interposed  to  prevent  the  argument"  and  subject 
him  to  unworthy  suspicion." 

"Tyler,  p.  243.  Tyler  added  "though  the  nomination"  to  the  Chief 
justiceship  "was  still  pending,  his  scrupulous  sense  of  propriety  forbade  him  to 
argue  a  cause."  The  letters  to  Van  Buren  printed  in  8  Md.  Hist.  Mag.  313 
&  ff .  show  that  this  statement  is  not  correct. 


184  ROGER  BROOKE  TANEY 

On  the  next  day,  Taney  wrote  a  second  time  to  tell 
Van  Buren  that,  as  soon  after  his  speech  as  his  friends  in 
Washington  "think  right,"  he  "should  be  glad  to  have 
the  matter  disposed  of  finally."  He  thought  the  party 
prospects  in  Maryland  were  good,  and  rejoiced  in  the 
splendid  termination  of  Jackson's  public  life  through 
the  settlement  of  the  difficulties  with  France.  When 
Taney  could  come  to  Washington,  "without  incurring 
the  suspicion  of  coming  to  electioneer  with  the  Senate," 
he  expected  to  "take  an  early  day  to  pay"  his  "respects 
to  his  friends  there  and  rejoice  with  you"  over  the  politi- 
cal prospects. 

On  March  10,  he  wrote  a  third  time,  asking  that  action 
upon  the  nomination  be  no  longer  postponed,  and  on  the 
15th,  a  fourth  letter  dated  at  Baltimore,  was  sent  Van 
Buren,  suggesting  that  Upton  S.  Heath  be  appointed 
United  States  District  Judge  in  the  place  of  Elias  Glenn, 
who  was  about  to  resign.  Taney  was  much  disturbed  at 
the  report  which  had  reached  him  that  his  "sincere  and 
excellent,  but  most  injudicious  friend,  Mr.  Key,  had  put 
to  hazard  by  his  conduct  all  the  prospects  of  my  future 
life,"  by  suggesting  a  further  postponement  of  action 
on  Taney's  nomination.  Taney  felt  that  he  had  "al- 
ready done  everything  which  duty  to  myself  and  others, 
required,  in  the  case"  of  Reverdy  Johnson  and  John 
Glenn,  and  hoped  soon  to  be  relieved  "from  the  painful 
and  embarrassing  position  in  which  I  have  been  so  long 
placed,"  with  "an  active  and  vindictive  opposition  to 
me,  in  the  Senate  and  out  of  it,  also  ready  to  take  advan- 
tage of  any  unforseen  event  to  defeat  me."  Taney  now 
wrote  that  "  I  have  no  desire  that  my  nomination  should 
be  postponed  an  hour,  on  account  of  my  engagements 
at  Annapolis,  and  I  do  most  anxiously  desire  not  to 
be  surrendered  by  my  friends  to  the  mercies  of  my 
adversaries." 


ROGER  BROOKE  TANEY  185 

The  last  letter  of  this  series  was  sent  by  Taney  from 
Annapolis,  three  days  later.  The  hearing  before  the 
House  of  Delegates  had  been  again  postponed  on  the 
application  of  the  corporation  of  Baltimore.  Taney  now- 
felt  that  he  had  done  enough  to  show  that  he  was  not  to 
be  intimidated  "from  the  discharge  of  a  clear  duty" 
and  did  not  "wish  the  action  of  the  Senate  upon  my 
nomination  to  be  retarded  or  hastened  on  account  of 
my  engagements  here."  When  Taney  retired  from  the 
case,  he  placed  his  notes  in  the  hands  of  John  V.  L.  Mc- 
Mahon,  Esq.,  and  merely  appeared  as  a  citizen,  to  advise 
the  passage  of  the  bill.  McMahon's  eloquent  speech 
in  behalf  of  the  bill  was  ably  supported  by  Taney's 
influence  with  Jackson.  Reverdy  Johnson  and  some  of 
the  other  men  whom  the  bill  proposed  to  indemnify, 
were  Whigs  and  there  was  some  opposition  among  the 
extreme  Democrats  in  the  General  Assembly  to  the 
passage  of  the  measure.  It  was  even  said  that  Jackson 
opposed  the  bill.  Taney  thereupon,  asked  Key,  his 
brother-in-law,  to  go  to  Jackson  and  avert  the  influence 
of  Jackson's  supposed  hostility.  Key  did  so  on  the 
evening  of  March  14,  and  wrote,  immediately,  to 
Taney,-^  that  the  President  expressed  himself,  "in 
strong  and  decided  terms,  that  the  persons  whose 
property  had  been  destroyed  ought  to  be  fully 
indemnified  by  the  community  where  the  outrage  had 
occurred  and  denied,  positively,  that  he  had  ever 
expressed  any  other  opinion."  The  Legislature  passed 
the  bill. 

All  things  had  been  prepared  for  the  simple  ceremony. 
Taney  closed  his  political  career  and  began  his  judicial 
one  on  April  2,  1836.  On  that  day,  his  long  tenure  of 
the  highest  judicial  office  in  the  Republic,  began.     On 

28  Tyler,  p.  244. 


186  ROGER  BROOKE  TANEY 

Monday,  at  11:00  a.m.,^^  Elias  Glenn,  United  States 
District  Judge  for  Maryland,  and  Nathaniel  Williams, 
the  United  States  District  Attorney,  together  with  the 
Marshal  and  the  Clerk  of  the  Court,  waited  upon 
Taney  at  his  dwelling  and  accompanied  him  across  the 
street  to  the  Circuit  Court  Room,  where  Judge  Glenn 
administered  the  oath  of  office  to  Taney  before  a  large 
assemblage  of  people. 

"  50  Niles  Register  73. 


CHAPTER  IX 

Chief  Justice  of  the  Supreme  Court  of  the  United 
States  (1836-1846) 

On  Monday,  March  28,  1836,  the  oath  of  office  as 
Chief  Justice,  was  administered  to  Roger  B.  Taney, 
in  the  presence  of  many  lawyers  and  some  other  citi- 
zens. ^  He  had  reached  the  highest  judicial  post  in  the 
country  and  begun  a  career  of  twenty-eight  years  on  the 
bench,  in  which  he  followed  a  great  jurist — John  Mar- 
shall. Reverdy  Johnson,  the  leader  of  the  American 
bar — in  a  letter  written  Taney's  biographer  on  July  6, 
1871,  wrote  that  as  a  judge  Taney  "was  not  only  emi- 
nent; but,  in  the  opinion  of  many,  including,  as  I 
know,  Mr.  Clay,  was  fully  equal  to  his  great  prede- 
cessor. "^  Posterity  has  not  agreed  with  this  favorable 
estimate,  however,  and  has  rated  Taney's  services  too 
low  rather  than  too  high.  He  has  been  considered  a 
States'  rights  judge,  or  a  "partisan  of  the  extreme 
Democracy"  with  Jackson,^  but  this  estimate  is  not 
correct,  as  we  shall  see. 

He  studied  Lord  Bacon's  "Maxims"^  and  praised 
Bacon's  speech  to  Justice  Hutton,^  adding  the  counsel 
that  a  judge  should  be  "punctual  and  exact  punc- 
tuality from  others."  He  lived  up  to  this  principle. 
The  story  is  told  that  a  tradesman,  with  whom  he 
dealt,  lamented  in  his  presence  that  he  could  not  ob- 
tain from  his  lawyer  a  sum  of  money  which  the  latter 

^  Scharf,  Chronicles  of  Baltimore,  p.  419. 

2 13  Md.  Hist.  Mag.  170. 

'  Willoughby,  Supreme  Court,  p.  93. 

*  Taney's  Decisions,  618. 

"  Bacon's  Works,  vol.  4,  London  Edition,  1803,  p.  507. 

187 


188  ROGER  BROOKE  TANEY 

had  collected  for  him.  Taney  sent  for  the  lawyer, 
on  the  following  day,  and,  ascertaining  that  the  facts 
were  as  the  tradesman  had  stated,  told  the  lawyer  that, 
unless  the  money  were  at  once  forthcoming  he  could 
not  longer  practice  in  the  United  States  Court,  for 
Taney  would  see  to  having  him  disbarred.^ 

Of  his  bearing  in  court,  in  the  early  years  of  his 
judicial  service,  we  have  an  account  from  an  admirer:^ 

His  manner  was    strikingly    impressive,    when  his  slow  and 

solemn  form  was  seen  rising  in  court He  moved 

along,  like  the  majestic  Mississippi:  full,  clear,  and  magnifi- 
cent  So  soft  and  amiable  was  his  deportment,  that, 

even  amidst  the  heat  and  turmoil  of  nisi  prius  litigation,  he  was 
never  known  to  offend  the  feelings  of  any  of  his  brethren:  his 
conversation  was  never  roughened  by  austerity,  or  pedantry,  and, 
when  his  gallant  bearing  extorted  from  all  the  most  unfeigned 
praise,  he  would  almost  hide  himself  from  public  admiration  with 

the  unaffected  modesty  of  his  native  character In 

his  person,  he  is  full  six  feet  high,  spare  yet  so  dignified  in  deport- 
ment that  you  are  at  once  impressed  with  an  instinctive  reverence 
and  awe.  His  eye  is  full  of  genius  and  indicative  of  the  powerful 
mind  that  dwells  within,  his  features  are  marked  with  the  deepest 
thought,  and  his  manner  is  so  dignified  that  he  sheds  around  him, 
in  whatever  circle  he  may  move,  a  moral  influence  of  the  highest 
order. 

To  the  country  at  large,  he  was  known  only  as  an 
''astute  and  skillful  lawyer"  and  an  "ardent  partisan 
and  supporter  of  Jackson,"  who  had  forced  his  nomina- 
tion upon  the  senate,  because  of  his  own  high  opinion 
of  Taney. ^     When  Taney  became  Chief  Justice,  Story 

'  Recollection  of  E.  Glenn  Ferine,  Esq. 

'  4  So.  Lit.  Messenger  (June,  1838)  349.  The  article  is  signed:  "A  Gentle- 
man of  Maryland." 

8 15  AUantic  Monthly,  C.  M.  Ellis  151,  Tyler  252. 


ROGER  BROOKE  TANEY  189 

was  the  greatest  of  the  Associate  Justices.  Taney  wrote 
in  later  years^  that  he  was  "not  only  one  of  the  most 
eminent  jurists  of  the  age;  but,  for  a  long  time,  one  of 
the  brightest  ornaments  of  the  Supreme  Court  of  the 
United  States."  Story  had  been  ''locum  tenens''  of  the 
Chief  Justiceship,  to  use  his  own  words, ^^  in  the  interim 
after  Marshall's  death,  and  most  lawyers  thought 
that  he  should  have  been  given  the  position  perma- 
nently. At  first,  Story  was  pleased  with  Taney  and  he 
wrote  Charles  Sumner,  on  January  25,  1837:  ''Our 
new  Chief  Justice  conducts  himself  with  great  urbanity 
and  propriety. "^1  He  soon  changed  his  opinion,  how- 
ever, for  three  important  cases  involving  constitutional 
questions  were  decided  by  the  Court,  in  the  course  of  the 
next  few  months,  and  Taney  voted  in  each  one  of  these 
in  the  majority  and  in  opposition  to  the  views  held  by 
Story  and  Marshall.  As  a  result.  Story  wrote  Miss 
Martineau,  on  April  7,  1837:  "I  am  the  last  of  the 
old  race  of  judges.  I  stand  their  solitary  representa- 
tive with  a  pained  heart  and  subdued  confidence.  "^^ 
Story  wished  to  resign,  because  the  majority  of  the 
court  was  ''inclined  to  a  more  rigid  construction  of  the 
federal  powers  in  favor  of  State  rights"  and  because  he 
had  "become  convinced  that  a  new  era  had  come  and 
that,  with  the  spirit  which  now  animated  the  Court,  he 
could  not  hope  to  agree  with  them  on  constitutional 
points.  "13  He  reconsidered  his  decision,  however,  and 
continued  as  an  Associate  Justice,  until  his  death  in  1845. 

'  Ex  parte  Merryman.    Tyler,  p.  656. 

10  Story's  ''Life  of  Story,"  II,  223,  227.  Letter  of  February  8,  1836,  to 
Miss  Harriet  Martineau,  in  which  Story  wrote  that  he  expected  Taney's 
confirmation. 

history's  Story,  II,  266. 

12  Story's  Story,  II,  277. 

"Story'sStory,  II,  271. 


190  ROGER  BROOKE  TANEY 

With  Taney,  truly  begins  a  new  period  in  the  Court's 
history,  "an  era  of  individual  views,  of  doubts,  and 
queries,  of  numerous  dissenting  opinions,  of  strict  con- 
struction of  the  Constitution."  To  all  this,  we  may 
well  assent,  though  we  may  hesitate  to  follow  Hampton 
L.  Carson  to  the  end  of  his  sentence:  *'of  state  ascen- 
dancy, of  final  submission  to  what  Von  Hoist  has  called 
the  slavocracy;"  for  Taney  was  never  a  States  Rights 
man,  but  an  old  fashioned  Federalist  to  his  death. ^^ 
Carson's  estimate  of  Taney  is  of  value: 

In  knowledge  of  technical  details  in  all  departments  of  legal 
learning,  in  the  mastery  of  principles  derived  from  constant  and 
varied  occupation  in  the  argument  of  causes  in  Courts  of  inferior 
and  superior  jurisdiction,  both  State  and  National,  he  excelled 

every  one  of  his  predecessors Delicate  in  health, 

but  vehement  in  his  feelings  and  passionate  in  temper,  he  ex- 
pressed himself  at  times  with  extraordinary  vigor  and  acted  with 
promptitude  and  decision.  He  was  a  man  of  the  highest  integrity 
and  of  great  simplicity  and  purity  of  character.  By  watchfulness 
of  himself,  he  had  acquired  perfect  self-control;  his  courage  was 
unflinching,  his  industry  was  great;  and  his  power  of  analysis  was 
unusual  even  among  men  remarkable  for  such  a  gift.  His  judicial 
style  was  admirable,  lucid  and  logical,  and,  like  his  arguments, 
displayed  a  thorough  knowledge  of  the  intimacies  of  pleading  and 
niceties  of  practice,  as  well  as  a  thorough  comprehension  of  under- 
lying principles.^^ 

He  adhered  closely  to  the  language  of  the  Consti- 
tution and  even  read  it  as  a  "penal  statute"  and  was 

_  anxious  to  protect  the  States  in  the  full  exercise  of  their 

j  reserved  powers. 

"  Carson's  "History  of  the  Supreme  Court  of  the  United  States,"  289. 
16  "History  of  the  Supreme  Court,"  p.  291. 


ROGER  BROOKE  TANEY  191 

His  mind^^  never  ''exercised  the  great,  or  predominat- 
ing, influence  over  his  associates,  which  had  been 
characteristic  of  Marshall.  The  practice  of  making 
the  Chief  Justice  the  organ  of  the  Court  in  delivering 
opinions  was  abandoned,  partly,  as  his  associates  have 
told  us,  because,  free  from  vanity  himself,  Taney  was 
earnestly  desirous  of  giving  them  all  an  opportunity 
of  expressing  their  views;  but,  chiefly,  as  any  close 
student  of  the  decisions  cannot  fail  to  perceive,  because, 
upon  constitutional  points,  the  Court  lacked  cohesion. "^^ 

It  is  ominous  of  Taney's  judicial  career  that  the 
first  case  reported  after  he  came  upon  the  bench  is  one 
in  which  he  was  in  the  minority^  ^  and  the  first  opinion 
that  he  filed,  embodying  the  decision  of  the  Court, 
was  in  a  case  in  which  the  question  of  slavery  entered 
and  which  was  decided  favorably  to  the  slaveholder.^^ 
Although  five  of  the  seven  justices  who  sat^^  came  from 
the  free  States,  the  abolitionists  felt^^  that  the  slave 
power  began,  from  that  time,  to  look  upon  the  Supreme 
Bench  as  its  surest  defence.^^ 

i»  "History  of  the  Supreme  Court,"  p.  337. 

^'  A  loftier  eulogy  on  Taney  is  given  by  Prof.  Wm.  E.  Mikell  of  the  Uni- 
versity of  Pennsylvania,  4  Great  Am.  Lawyers  77.  "If  Marshall  saved  the 
Federal  Government  from  dying  of  inanition,  Taney  saved  the  States  from 
death  by  absorption.  It  is  largely  to  the  genius  of  the  two  great  Chief  Justices 
that  an  indestructible  union  of  indestructible  States  is  due.  Who  in  this  work 
performed  the  greater  service  is  a  question  that  will  be  answered,  according  to 
the  political  views  of  the  person  to  whom  it  is  propounded.  That  Taney  worked 
nearer  the  understanding  of  the  Fathers  can  not  be  doubted  by  the  student  of 
constitutional  history."    Such  excessive  claims  are  unfortunate. 

18 11  Peters  1.  Marlott  v.  Silk.  No  dissenting  opinion  filed.  The  case 
dealt  with  a  compact  between  Pennsylvania  and  Virginia. 

1°  U.  S.  V.  Skiddy  (the  Ship  Garonne)  11  Peters  73. 

2°  Story,  McLean,  Thompson,  and  Baldwin, 

"  15  Atlantic  Monthly  154. 

'2  The  Court  decided  that,  under  the  Act  of  1818,  a  forfeiture  of  a  slave  did 
not  occur,  in  the  case  of  the  return  of  a  colored  woman  to  Louisiana  from 
France,  whither  she  had  gone  from  Louisiana  with  her  mistress. 


192  ROGER  BROOKE  TANEY 

Taney's  defender  says  of  this  decision,  and  of  those 
like  it,  with  considerable  correctness  i^^ 

As  a  judge,  pledged  to  administer  the  law,  he  conceived  that 
his  duty  was  not  to  seek  technicalities,  either  to  uphold  or  extend, 
restrict  or  prohibit  slavery;  but,  recognizing  its  legality  and  limi- 
tations under  the  Constitution,  his  duty  was  to  find,  in  the  inten- 
tion of  the  makers  of  that  instrument  and  of  Congress,  when  they 
acted  lawfully  under  it,  the  law  of  the  land  and  to  declare  that  law, 
without  regard  to  the  political  aspects  of  the  question. 

It  is  a  good  rule  and  one,  alas!  which  Taney  broke,  at 
least  upon  one  memorable  occasion. 

The  three  important  constitutional  cases  decided  by 
the  Court  at  the  January  term,  contrary  to  the  views 
of  Marshall  and  Story,  were  the  Mayor  of  New  York  v. 
Miln,24  Briscoe  v.  Bank  of  Kentucky^^  and  Charles 
River  Bridge  Company,  v.  Warren  Bridge  Company.^^ 
These  cases  had  been  pending,  when  Taney  came  upon 
the  Bench,  and  he  wrote  the  opinion  in  the  last  of  them.^^ 

In  the  case  of  the  Mayor  of  New  York  v.  Miln,  a 
law  of  the  State  of  New  York  was  upheld  under  the 
police  power,  which  required  the  master  of  a  ship, 
under  penalty,  to  report  in  writing  concerning  the 
passengers  he  brought,  within  twenty-four  hours  of  the 
vessel's  arrival.  The  argument  against  the  law  was 
that  the  Statute  was  unconstitutional, ^^  as  conflicting 
with  the  commercial  power  of  Congress.  The  Court's 
opinion  was  that  persons  are  not  the  subjects  of  com- 

23  Mikell  in  4  Great  Am.  Lawyers  105. 

24  11  Peters  102. 
«11  Peters  257. 
"11  Peters  420. 

*^  Barbour  wrote  the  opinion  in  N.  Y.  v.  Miln  and  McLean  that  in  the 
Kentucky  Case. 

28  Following  the  decisions  in  Gibbons  v.  Ogden  and  Brown  v.  Baltimore. 


ROGER  BROOKE  TANEY  193 

merce,  as  they  are  not  imported  goods,  so  that  the 
"reason  founded  upon  the  construction  of  power. given 
to  Congress  to  regulate  commerce  and  prohibiting  the 
States  from  imposing  a  duty  does  not  apply."^^ 

In  later  years  in  the  Passenger  cases^"  a  curious  « 
difference  of  memory  as  to  this  opinion  between  Taney 
and  Wayne  was  revealed.  Taney  said  that  the  opinion 
was  that  of  the  majority  of  the  Court.  Barbour  read  it, 
Thompson's  opinion  agreed  with  it  and  Baldwin  in  an 
opinion  delivered  four  years  later  approved  of  it. 
Wayne  said  that  only  Barbour  and  Taney  favored  it 
as  a  whole  and  that  the  opinion  had  not  at  any  time  the 
concurrence  of  a  majority  of  the  Court,  except  in  so 
far  as  it  stated  that  so  much  of  the  act  as  required  the 
captain  of  a  vessel  to  report  his  passengers  was  a  police 
regulation  and  therefore  was  not  a  violation  of  the  power 
of  Congress  to  regulate  commerce.  Carson  remarks  that 
"each,  with  the  most  perfect  sincerity,  and  fullness  of 
detail  states  what  he  recalls  of  the  discussion  and  of 
the  points  determined  and  each  with  perfect  courtesy, 
but  with  characteristic  firmness,  contradicts  the  other 
and  labels  the  statement  of  his  opponent  as  a  dangerous 
error." 

Taney  here,   as  ever,   continued  his  advocacy  of  a 
narrow  construction  of  the  commerce  clause,  to  which      /  ^ 
he  had  committed  himself  while  counsel  in  Brown  v. 
Baltimore. 

In  the  second  case,  Briscoe  v.  Bank  of  Common- 
wealth of  Kentucky,  the  Court  upheld  the  constitu- 
tionality of  a  Statute,   allowing  a  bank,   in  which   a 

*'  Justice  Thompson  argued  for  the  validity  of  the  State  law,  ab  silentio 
Congress.  The  doctrine  of  the  case  was  controverted  by  Smith  v.  Turner, 
7  Howard  283,  in  1849,  and  the  Court  reviewed  the  question  in  Curley  v.  Board 
of  Post  Wardens,  12  Howard  300  in  1851. 

30  7  Howard  429,  484,  vide  Carson's  Supreme  Court  ZZ2>. 


194  ROGER  BROOKE  TANEY 

State  held  the  stock,  to  issue  paper  money  and  held 
that  such  a  grant  did  not  contravene  the  prohibition  in 
the  National  Constitution  against  a  State's  emitting 
bills  of  credit.^i 

The  third  case  is  more  important  for  our  present 
purpose.  It  not  only  involved  the  constitutionality  of 
a  State  law;  but  also  concerned  the  famous  Dartmouth 
College  Case,  in  which  it  had  been  held  that  a  charter 
constituted  a  contract,  the  obligation  of  which  would  be 
impaired  by  any  change  in  the  charter  without  consent 
of  the  Corporation  chartered.  Such  impairment  of  a 
contract  was  forbidden  by  the  Constitution  of  the 
United  States,  and  Webster,  who  had  won  the  Dart- 
mouth College  Case,  was  here  defeated  for  the  first 
time  in  a  Constitutional  question.  The  gist  of  the 
case  was  whether  the  incidental  advantages  conferred 
by  a  charter  could  be  essentially  diminished,  or  taken 
away,  by  a  subsequent  charter  to  another  corporation. 
Those  who  had  followed  Taney's  career  and  had  read 
his  opinion  in  the  case  of  the  Camden  and  Amboy  Rail- 
road^^  could  have  had  no  doubt  as  to  how  he  would 
vote  in  the  decision  of  this  question.  The  opinion  is 
his  first  important  one  and  is  a  fine  piece  of  work, 
characterized  in  Carson's  words^^  by  the  "broadest 
statesmanship."  Taney's  ardent  admirer,  George  W. 
Biddle,  wrote  of  the  decision  :^^ 

Unless  the  luxuriant  growth,  the  result  of  the  decision  in  4 
Wheaton,^^  had  been  lopped  and  cut  away  by  the  somewhat  tren- 

«  See  D.  R.  Dewey's  "Financial  History  of  United  States,"  p.  261.  This 
case  conflicted  with  Craig  v.  Missouri,  4  Peters  410  (1830). 

32  See  Chapter  VI. 

33  Hist.  Sup.  Ct.  p.  292. 

34  Constitutional  History  of  U.  S.  as  seen  in  the  Development  of  Am.  Law. 
Lectures  before  the  Political  Science  Association  of  the  University  of  Michigan 
133. 

36  The  Dartmouth  College  Case. 


ROGER  BROOKE  TANEY  195 

chant  reasoning  of  the  Chief  Justice,  the  whole  field  of  legislation 
would  have  been  choked  and  rendered  useless  in  time  to  come  for 
the  production  of  any  laws  that  would  have  met  the  needs  of  the 
increasing  and  highly  developed  energies  of  a  steadily  advancing 
community.^^ 

Tyler^^  wrote  of  the  decision,  as  *' enforced  with  the 
most  convincing  reasoning,  founded  on  sound  legal 
doctrine  and  expressed  in  the  most  felicitous  diction," 
and  as  a  decision  ''most  auspicious  for  the  country," 
since  "it  left  the  States  free  to  push  forward  the  great 
improvements  by  which  the  earth  had  been  subdued 
to  the  dominion  of  man." 

Story  had  considered  the  argument  of  the  case  "com- 
plete and  fine"^^  but,  when  the  opinion  was  rendered, 
he  wrote  his  wife:^^  that  he  was  sorry  for  the  decision 
by  a  divided  court  and  believed  that  "a  case  of  grosser 
injustice,  or  more  oppressive  legislation,  never  existed. 
I  feel  humiliated,  as  I  think  every  one  here  is  by  the 
act  which  has  been  confirmed."  Webster,  of  course, 
commended  Story's  dissenting  opinion,  but  Chancellor 
James  Kent  was  also  just  as  earnest  in  condemning  the 
decision,  when  he  "reperused"  the  case,  with  "increased 
disgust."  The  Briscoe  case  appeared  to  him  "quite  as 
alarming  and  distressing"  and  he,  despairingly,  wrote: 

3'  In  unmeasured  panegyric,  Prof.  Mikell  wrote,  in  4  Great  Am.  Lawyers, 
p.  128:  "The  greatest  expounder  of  the  Constitution  that  ever  sat  on  the 
Supreme  Court  Bench  became  the  truest  expounder  of  the  intentions  of  those 
who  framed  that  great  instrument.  In  was  his  glory  that,  with  a  sane  mind, 
untroubled  by  the  criticism  of  partisans,  sincere  or  otherwise,  he  interpreted 
the  Constitution,  or  lent  the  weight  of  his  influence  to  its  interpretation,  so  as 
to  reserve  unimpaired  to  the  States  the  rights  reserved  to  them  and,  at  the  same 
time,  to  give  full  effect  to  all  the  powers  granted  by  the  States  to  the  Federal 
government." 

3^  Vide,  pp.  274r-279;  this  quotation  is  from  p.  277. 

"8  Story's  Story  II,  265. 

3»  Story's  Story  II,  268. 


196  ROGER  BROOKE  TANEY 

**I  have  lost  my  confidence  apd  hopes  in  the  constitu- 
tional guardianship  and  protection  of  the  Supreme 
Court."^« 

After  returning  to  Massachusetts,  Story  found  no 
cause  to  change  his  mind ;  but  wrote  thus  to  his  colleague, 
Justice  McLean, ^1  upon  May  10: 

The  opinion  delivered  by  the  Chief  Justice  has  not  been  deemed 
satisfactory  and,  indeed,  I  think  I  may  say,  that  a  great  majority 
of  our  ablest  lawyers  are  against  the  decisions  of  the  Court,  and 
those  who  think  otherwise  are  not  content  with  the  views  of  the 

Chief  Justice There  will  not,  I  fear,  ever,  in  our  day, 

be  any  case  in  which  a  law  of  a  State,  or  of  Congress,  will  be  de- 
clared unconstitutional;  for  the  old  constitutional  doctrines  are 
fast  fading  away  and  a  change  has  come  over  the  public  mind, 
from  which  I  augur  Httle  good. 

It  is  a  curious  commentary  upon  this  prediction  that, 
after  near  twenty  years  of  calm  acquiescence  with  the 
decisions  of  the  Supreme  Court,  great  turmoil  arose 
and  disapproval  of  the  Court's  position  was  especially 
voiced  in  New  England,  when  a  Federal  Statute — the 
Missouri  Compromise — was  declared  unconstitutional 
in  the  Dred  Scott  Case.  Thayer^^  states  that  Green- 
leaf,  who  was  counsel  for  the  defendants — the  Warren 
Bridge  Company — suffered  reproach  from  a  highly 
excited  community.^^ 

*o  story's  Story  II,  269,  270. 

*"  Story's  Story  II,  272. 

*'  Select  Cases  on  Constitutional  Law,  1641. 

^  He  filed  in  the  Harvard  College  Library  a  volume,  containing  minutes  of 
the  various  arguments,  etc.,  and  included  in  the  book  a  newspaper  clipping 
containing  Taney's  opinion,  in  1832,  on  the  Trenton  and  New  Brunswick 
Turnpike  Company  in  New  Jersey.  The  volume  also  contains  an  opinion  by 
Kent,  in  which  Webster  concurred,  stating  that  Taney's  opinion  in  the 
above  matter  had  been  read,  but  discussion  was  waived  "upon  that  point,  as 
not  necessary  in  the  view  which  I  take  of  the  case.  I  certainly  think  the 
legislative  stipulation  ought  to  be  sternly  construed,  as  one  that  may  be  exceed- 
ingly inconvenient  for  the  public  welfare." 


ROGER  BROOKE  TANEY  197 

A  writer  in  New  York  Review^^  for  April,  1838,  thought 
that  these  three  constitutional  cases  showed  an  "altered 
tone  and  narrower  spirit,"  than  was  exhibited  in  Mar- 
shall's time.  Five  of  the  justices — a  majority  of  the 
Court  were  Jackson's  appointees  and  the  change  in 
the  Court  was  "so  great  and  ominous  that  a  gathering 
gloom  is  cast  over  the  future."  The  writer's  objections 
to  the  Charles  River  Bridge  case  were:  (1)  "what  is 
most  damning  and  most  heretical  in  this  opinion  is  the 
new  fangled  doctrine  that  the  contracts  of  the  State 
are  to  be  construed  strictly  as  against  the  grantee  and 
that  nothing  can  be  raised  by  implication ;  "^^  (2)  that 
there  was  a  "surrender  to  the  avidity  and  encroach- 
ments of  the  State  Sovereignties  of  the  great  and  essen- 
tial— and  exclusively  National — power  in  Congress,  to 
regulate  commerce,"^^  and  that  (3)  a  "salutary  injunc- 
tion in  the  constitution  is  so  reduced,  by  strict  and 
subtle  constructions,  as  to  amount  only  to  an  empty 
sound" — and  indeed  all  ground  gained  under  Marshall 
may  be  lost.^^ 

Let  us  now  examine  the  circumstances  of  this  im- 
portant case  and  the  grounds  of  Taney's  opinion.**^ 
The  issues  of  the  decision, ^^  involved  questions  of  the 
"gravest  character,"  to  the  answer  of  which  the  Court 
had  given  "most  anxious  and  deliberate  consideration." 
The  right  had  a  large  value,  many  persons  were  affected 
as  to  "their  pecuniary  interests,"  and  the  determina- 
tions  "as  to  the  powers  of  the  States,  in  relation  to 
corporations  they  have  chartered,   are  pregnant  with 

"  2  N.  Y.  Rev.  372. 

«  Page  389. 

"  Page  397. 

«  Page  399. 

*8 11  Peters  420 — McLean,  Story,  and  Thompson  dissented,  pp.  536  &  £f. 


198  ROGER  BROOKE  TANEY 

important  consequences"  both  to  individuals  and  to 
communities.  The  Court  felt  that  it  "must  preserve 
the  rights  of  property  and  carefully  abstain  from  any 
encroachment  on  the  rights  reserved  to  the  States." 

As  far  back  as  1650,  the  General  Court  of  Massa- 
chusetts granted  Harvard  College,  the  right  to  dispose  of 
a  ferry  from  Charlestown  to  Boston.  In  1785,  in  re- 
sponse to  a  petition,  there  was  chartered  the  Charles 
River  Bridge  Company  to  build  a  bridge  over  the 
Charles  River,  where  the  ferry  had  been  kept.  The 
Charter  was  granted  for  forty  years  from  the  opening 
of  the  bridge  and  the  company  was  directed  to  pay 
£200  yearly  to  Harvard  College.  At  the  end  of  the 
forty  years,  except  for  a  reasonable  compensation  to 
Harvard  College,  the  bridge  should  become  the  property 
of  the  Commonwealth.  The  bridge  was  opened  in 
1786  and,  in  1792,  the  General  Court  extended  the  life 
of  the  Corporation  for  ten  years  from  the  termination 
of  the  forty  years  previously  granted.  Within  the 
term  of  the  corporation's  life,  in  1828,  the  General 
Court  incorporated  the  Proprietors  of  the  Warren 
Bridge,  to  build  another  bridge  over  the  Charles  River 
which  second  bridge  was  located  16  rods  from  the  old 
one  at  the  Charlestown  end  and  50  rods  away  at  the 
Boston  end.  This  Warren  Bridge,  by  the  terms  of 
the  charter,  was  to  be  surrendered  to  the  State,  as  soon 
as  the  expenses  of  building  it  had  been  met  from  the 
proceeds  of  the  toll  taken  thereon  and,  in  any  case, 
not  more  than  6  years  from  the  time  when  toll  began 
to  be  taken. 

The  Charles  River  Company  then  asked  for  an  in- 
junction against  the  Warren  Bridge  Company  and,  in 
its  original  bill,  alleged  the  impairment  of  the  obligation 
of  a  contract  by  the  charter  which  had  just  been  granted. 


ROGER  BROOKE  TANEY  199 

A  supplemental  bill  stated  that  the  new  bridge  had 
been  completed  and  had  resulted  in  an  actual  loss  of 
toll  at  the  old  bridge. 

In  1829,  the  Massachusetts  court  decided  that  there 
had  been  no  impairment  of  the  obligation  of  a  contract 
and,  on  a  writ  of  error,  the  upper  court  was  equally 
divided,  so  the  original  decision  stood.'^^  In  the  period 
between  this  decision  and  the  decision  of  the  Supreme 
Court,  the  Warren  Bridge  Proprietors  had  received 
sufficient  toll  to  reimburse  them  and  the  bridge  became 
the  property  of  the  Commonwealth,  which  abolished 
the  tolls  on  it  and  thus  practically  destroyed  the  value 
of  the  franchise  of  the  Charles  River  Bridge.^^  The 
plaintiffs  alleged  that  the  right  of  Harvard  to  a  return 
from  the  tolls  on  the  bridge  was  exclusive  and,  independ- 
ently of  the  ferry  right,  the  acts  of  the  General  Court 
necessarily  implied  that  the  Legislature  would  not 
authorize  another  bridge,  whereby  the  old  franchise 
was  made  of  no  value.  They  claimed  that  both  the 
ferry  and  charter  grants  were  contracts  on  the  part  of 
Massachusetts,  and  that  these  were  impaired  in  their 
obligation  by  the  Warren  Bridge  Charter.  The  Su- 
preme Court  held  that  a  State  law  might  be  retrospec- 
tive and  violate  vested  rights  and  yet  not  be  set  aside,  as 
contrary  to  the  United  States  Constitution.  The 
plaintiff  must  show  "that  the  State  had  entered  into 
a  contract  with  them,  or  those  under  whom  they  claim, 
not  to  establish  a  free  bridge  at  the  place  where  the 

*•  The  case  is  reported  in  6  Pickering  376  and  7  Pickering  344  (1830). 

'°  Some  of  these  latter  facts,  if  material,  ought  have  been  brought  in  by 
supplemental  bill,  in  the  view  of  the  Court;  but  the  opinion  treated  the  case, 
as  if  they  were  regularly  before  the  tribunal,  as  those  facts  would  not,  *'in  any 
degree,  influence  the  decision"  and,  as  they  were  conceded  to  be  true,  and  the 
case  had  been  argued  on  that  ground,  and  both  parties  desired  a  final  end  of 
the  long  controversy,  and  as  it  was  important  that  the  principles  on  which  the 
case  was  decided  should  not  be  misunderstood. 


200  ROGER  BROOKE  TANEY 

Warren  Bridge  is  erected."  It  was  almost  impossible^ 
of  course,  to  do  this.  Taney  denied  that  it  had  been 
shown  that  any  exclusive  privileges  granted  to  Harvard 
College  had  been  transferred  to  the  Charles  River  Com- 
pany and  were  still  in  existence.  The  payment  of 
£200  per  annum  to  the  College  had  been  claimed  to 
give  the  proprietors  of  the  bridge  an  equitable  claim 
to  be  treated  as  assignees  of  the  College's  interest  and, 
by  substitution,  to  be  vested  with  its  rights,  but  Taney 
held  that  the  answer  to  this  claim  was  obvious — the 
sum  to  be  paid  from  the  tolls  was  to  be  collected  from 
the  public  and  it  was  intended  that  the  public  bear  this 
expense.  The  agreement  to  pay  that  sum  gave,  there- 
fore, no  equitable  right  to  the  plaintiffs  to  be  regarded 
as  assignees  of  the  College  and,  certainly,  furnished  no 
foundation  for  presuming  a  conveyance. 

As  the  proprietors  of  the  Charles  River  Bridge  were 
neither  legal,  nor  equitable  assignees  of  the  College, 
the  ferry  franchise  could  not  be  involved  in  the  case. 
The  Harvard  College  privilege  could  not  extend  the 
privileges  of  the  Bridge  Company.  There  might  well 
have  been  a  change  of  policy  in  the  mind  of  the  General 
Court.  The  franchises  are  different  in  nature  and  were 
established  by  separate  grants,  which  had  no  words  to 
connect  the  privileges  of  the  one  grant  with  those  of 
the  other.  "The  charter  to  the  Bridge  is  a  written  in- 
strument, which  must  speak  for  itself  and  be  inter- 
preted by  its  own  terms.  The  charter  is  a  grant  by  the 
Public  to  a  private  corporation  and  in  a  matter  where 
the  public  interest  is  concerned."  Following  English 
precedents,  the  Court  must  construe  such  grants 
strictly,  giving  no  enlarged  privileges  by  implication. 
The  fact  that  the  power  of  the  Commonwealth  had  been 
so  exercised  as  to  destroy  the  value  of  the  franchise 
could  not  affect  the  principle. 


ROGER  BROOKE  TANEY  201 

The  object  and  end  of  all  government  is  to  promote  the  happiness 
and  prosperity  of  the  community  by  which  it  is  established,  and  it 
can  never  be  assumed  that  the  government  intended  to  diminish 
its  power  of  accomplishing  the  end  for  which  it  was  created.  And, 
in  a  country  like  ours,  free,  active,  and  enterprising,  continually 
advancing  in  numbers  and  wealth,  new  channels  of  communica- 
tion are  daily  found  necessary,  both  for  travel  and  trade,  and  are 
essential  to  the  comfort,  convenience,  and  prosperity  of  the  people. 
A  State  ought  never  to  be  presumed  to  surrender  this  power; 
because,  like  the  taxing  power,  the  whole  community  have  an 
interest  in  preserving  it  undiminished The  con- 
tinued existence  of  a  government  would  be  of  no  great  value,  if, 
by  implications  and  presumptions,  it  was  disarmed  of  the  powers 
necessary  to  accomplish  the  ends  of  its  creation  and  the  functions 
it  was  designed  to  perform,  were  transferred  to  the  hands  of 
privileged  corporations.^^ 

The  Court  held  that  there  was  no  exclusive  privilege 
given  the  old  bridge  company  over  the  waters  of  the 
Charles  River  above  or  below  their  bridge.  They  had 
no  right  to  erect  another  bridge  themselves,  nor  to 
prevent  other  persons  from  erecting  one.  No  engage- 
ment had  been  made  by  Massachusetts  that  another 
bridge  should  not  be  erected.  No  undertaking  had 
been  given  not  to  sanction  competition,  nor  to  prohibit 
improvements,  which  might  diminish  the  amount  of 
the  old  company's  income.  If  the  plaintiff  were  en- 
titled to  any  of  those  rights,  it  was,  by  implication, 
from  the  nature  of  the  grant,  and  not  from  its  words. 
The  Warren  Bridge  neither  interrupted  the  passage  over 
the  Charles  River  Bridge,  nor  made  the  way  to,  or 
from,  it  less  convenient.  "The  gist  of  the  complaint" 
was  that,  while  "all  franchises  and  rights  of  property 
enumerated    in    the    charter     ....     remain    un- 

'^  We  have  here  a  distant  echo  of  the  controversy  with  the  United  States 
Bank. 


202  ROGER  BROOKE  TANEY 

impaired,  ....  its  income  is  destroyed  by  the 
Warren  Bridge."  The  Court  repHed  that  the  charter 
contained  no  contract  in  words  made  by  the  Common- 
wealth not  to  diminish  the  amount  of  tolls  through 
competition  and  no  implication  could  be  allowed. 
"The  whole  community  are  interested  in  this  inquiry 
and  they  have  a  right  to  require  that  the  power  of 
promoting  their  comfort  and  convenience  and  advancing 
the  public  prosperity  by  providing  safe,  convenient, 
and  cheap  ways  for  the  transportation  of  produce  and 
purposes  of  travel,  shall  not  be  construed  to  have  been 
surrendered,  or  diminished,  by  the  State,  unless  it 
shall  appear,  by  plain  words,  that  it  was  intended  to 
be  done."  The  act  of  1792,  which  extended  the  term 
of  the  charter  of  the  Charles  River  Bridge  Company, 
also  incorporated  another  company  to  build  a  bridge, 
the  West  Boston  Bridge,  over  that  River  at  a  distance 
of  between  one  and  two  miles  from  the  old  bridge  and 
the  reason  for  the  extension  of  the  charter  was  stated 
to  be  that  the  erection  of  another  bridge  may  diminish 
the  emoluments  of  the  Charles  River  Bridge  Company, 
whose  undertaking  was  *'a  work  of  hazard"  and  should 
be  encouraged.  From  this  act,  Taney  drew  the  con- 
clusion that  the  General  Court,  within  seven  years  of 
the  grant  of  the  original  charter,  did  not  suppose  that  it 
had  deprived  itself  of  the  power  to  alter  it  and,  in  the 
amending  act,  was  careful  to  use  language  which  would 
*' exclude  the  inference  that  the  extension  was  made,  on 
the  ground  of  compromise,  or  as  compensation  for 
rights  impaired."  The  plaintiff,  holding  a  franchise 
under  the  law  of  1792,  can  not  add  to  the  privileges 
expressed  in  the  charter  an  implied  agreement,  in 
direct  conflict  with  a  portion  of  that  law.  Taney  con- 
sidered that  it  would  be  hard  to  prove  such  a  claim 


ROGER  BROOKE  TANEY  203 

against  an  individual,  still  more  against  the  State. 
''It  would,  indeed,  be  a  strong  exertion  of  judicial 
power,"  Taney  held,  "to  raise,  by  a  sort  of  judicial 
coercion,  an  implied  contract  and  infer  it  from  the 
nature  of  the  very  instrument,  in  which  the  legislature 
appears  to  have  taken  pains  to  use  words  which  dis- 
avow and  repudiate  any  intention  on  the  part  of  the 
State  to  make  such  a  contract."  The  practice  of 
States  in  chartering  railroads  and  turnpike  companies 
was  against  the  plaintiffs'  contention,  which  had  not 
previously  been  urged  in  any  similar  case.  If  the  con- 
tention were  granted,  where  could  the  line  be  drawn, 
Taney  inquired,  in  such  an  argumentum  ah  inconve- 
nienti?  Old  turnpike  companies  would  at  once  bring 
suits  against  railroads,  "an  arbitrary  rule  of  distance 
would  have  to  be  fixed  and  the  States  would  be  unable  to 
avail  themselves  of  the  lights  of  modern  science." 
Principles  which  lead  to  such  bad  results  should  not  be 
sanctioned  by  the  Court. 

Such  was  the  Court's  decision  and  Taney's  opinion 
expounding  it.  The  general  opinion  of  the  legal  pro- 
fession today  is  that  the  decision  was  a  wise  and  just 
one  and  that  Taney's  opinion  worthily  stated  the 
grounds  for  that  decision  and  showed  that,  when  he  had 
been  placed  as  Chief  Justice,  the  high  position  had  been 
given  to  an  able  jurist,  who  could  clearly,  wisely,  and 
sententiously  deliver  the  law,  as  interpreted  by  the 
august  tribunal. 

Taney  rendered  only  two  other  opinions  at  the  1837 
term  of  Court.  Both  of  these  concerned  the  jurisdic- 
tion of  the  courts:  in  one  of  them^^  j^g  j^gj^j  ^j^^^  there 
was  no  Federal  jurisdiction  on  the  question  as  to  whether 
a  person  claiming  land  in  Pennsylvania  on  an  invalid 

''aMcBride  v.  Hogg  11  Peters  171. 


204  ROGER  BROOKE  TANEY 

deed,  given  on  a  sale  for  taxes  under  United  States  law, 
had  the  right  to  redeem  the  land;  and,  in  the  other,  he 
refused  to  grant  a  mandamus^  since  a  prima  facie  case 
had  not  been  made.^^ 

The  year  1838,  saw  a  new  phenomenon,  the  Chief 
Justice  disagreeing  with  the  majority  of  the  Court 
upon  a  Constitutional  question,  in  the  boundary  dispute 
between  Rhode  Island  and  Massachusetts.^^  He  con- 
sidered the  powers  given  the  courts  by  the  Constitu- 
tion as  judicial  only,  not  extending  to  political  subjects 
and  maintained  that  Rhode  Island  sought  to  recover 
not  land,  but  "sovereignty  and  jurisdiction,"  which 
are  not  matters  of  property,  but  are  political  rights 
and,  therefore,  are  not  subjects  of  judicial  cognizance. 
It  is  fortunate  that  the  Court  did  not  follow  Taney 
here,  for  to  have  done  so  would  have  caused  the  power 
to  determine  controversies  between  the  States  to  lose 
much  of  its  value.^^ 

In  another  case  of  this  year,  Taney  delivered  the 
Court's  opinion  and  held  that,  when  there  was  a  dis- 
pute as  to  land  grants  made  by  Spain,  between  the 
Mississippi  and  the  Perdido  River,  the  determination 
of  the  boundary  between  West  Florida  and  Louisiana 
w^as  a  political  question. ^^ 

^'Postmaster  General  v.  Trigg  11  Peters  173.  In  Livingston  v.  Story,  11 
Peters  351,  Taney  did  not  sit,  as  he  had  been  counsel  in  the  case,  before  his 
elevation  to  the  bench. 

"  He  filed  an  opinion,  in  accordance  with  the  practice  in  constitutional 
cases,  but  stated  that  he  would  give  his  full  opinion  after  the  final  hearing  of 
the  case.  12  Peters  657,  752.  The  case  had  been  continued  in  the  preceding 
year.  11  Peters  226.  The  Court  refused  to  dismiss  the  suit  for  want  of 
jurisdiction. 

^  See  Tyler,  p.  279.    The  case  was  finally  decided  in  1846.    4  Howard  591. 

^  Garcia  v.  Lee,  12  Peters  511.  In  Strother  v.  Lucas  12  Peters  410  Taney 
did  not  sit,  having  been  counsel  in  the  case. 


ROGER  BROOKE  TANEY  205 

About  this  time,  we  find  the  beginning  of  that  long 
series  of  opinions  upon  questions  of  practice  and  pro- 
cedure, which  were  generally  left  to  Taney's  care, 
while  he  was  upon  the  bench.  These  opinions  are,  fre- 
quently, short  and,  while  they  have  no  dramatic  interest 
nor  constitutional  importance,  yet  they  constitute  an 
important  service  rendered,  in  standardizing  the  ad- 
jective side  of  the  law,  as  practiced  in  the  Supreme 
Court." 

In  a  case  where  Maryland  law  had  to  be  construed, 
Taney  delivered  the  opinion  of  the  Court^^  and,  in 
another  one,  he  concurred  in  the  decision,  but  not  in 
the  reasoning. ^^ 

Taney  dissented  in  1838,  in  the  case  of  Kendall  v. 
Stokes^^  in  which  the  Court  held  that  a  mandamus 
would  issue  to  command  the  Postmaster  General  to 
perform  a  ministerial  act.  Tyler  praises  Taney's  dis- 
sent,^^  as  showing  ''perfect  knowledge  of  the  remedies 
furnished  by  the  law  of  England,  in  all  their  changed 
adaptations,    from   age   to   age."     It  is   interesting    to 

^^  These  cases  are:  (l)  Benton  v.  Woolsey,  12  Peters  27.  A  valid  bill  of 
information  may  be  brought  in  the  name  of  the  United  States  District  Attorney, 
but  the  correct  practice  is  to  bring  suit  in  the  name  of  the  United  States;  (2)  Brad- 
street  V.  Thomas  12  Peters  59.  Averment  of  Citizenship.  (3)  McNielv.  Hol- 
brook  12  Peters  84.  The  Statutes  of  States  which  prescribe  rules  of  evidence 
in  civil  cases  are  included  under  section  34  of  the  Judiciary  Act;  (4)  West  v. 
Brachear,  12  Peters  101,  Opinion  of  2  paragraphs,  a  dismissal  of  an  appeal; 
(5)  Wilson  V.  Life  Ins.  Co.  12  Peters  140.  A  writ  of  error  naming  the  plaintiffs 
as  heirs  of  Wilson  is  bad  and  defects  may  be  taken  advantage  of  until  final 
judgment;  (6)  Sarchetv.  U.  S.  12  Peters  143,  a  writ  of  error  and  appeal;  (7)  Story 
V.  Livingston  12  Peters  340,  The  Court  below  refused  correctly  to  put  on  the 
record  facts  showing  that  the  suit  was  abated  before  appeal.  (8)  Poultney  v. 
LaFayette  City,  12  Peters  473,  Rules  of  Court. 

^^  Steele  v.  Carroll  12  Peters  201.    Question  of  mortgage  and  dower. 

^^  Toland  v.  Sprague  12  Peters  336.  Court  held,  contrary  to  Taney's  view, 
that  the  Circuit  Court  could  not  attach  the  property  of  a  foreign  debtor. 

«°  12  Peters  524,  626. 

«  Page  305. 


206  ROGER  BROOKE  TANEY 

notice  that,  even  in  questions  of  practice,  Taney  did 
not  dominate  the  Court  always.  He  had  wished  to 
confine  the  decision  to  a  narrow  point  and  expressed 
his  surprise  that  "so  many  grave  questions  of  consti- 
tutional power  have  been  introduced  and  so  earnestly 
debated."  The  position  of  Postmaster  General  was 
created  by  Congress,  which  may  limit  its  powers  and 
regulate  the  procedure.  Taney  held  that  Congress 
had  not  conferred  jurisdiction  in  this  matter  on  the 
Circuit  Court  of  the  District  of  Columbia  and  that  the 
controversy  returned  solely  on  the  construction  of  an 
act  of  Congress.  In  order  to  confirm  his  position  he 
made  an  elaborate  study  of  the  history  of  the  writ  of 
mandamus,  a  high  jurisdiction  in  the  Prerogative  and 
General  Courts  of  Maryland,  whence  the  City  of  Wash- 
ington in  the  District  of  Columbia  had  been  taken. 

After  the  announcement  of  the  decision  of  the  Court, 
Taney  was  considerably  criticised  in  the  newspapers, 
as  havipg  been  ''influenced  by  party  feeling  to  pro- 
tect General  Jackson's  Postmaster  General."  Mr. 
Richard  Peters,  the  Court  Reporter,  wrote  Taney 
concerning  these  comments  and  Taney  replied,  on 
March  27,^2 

The  daily  press,  from  the  nature  of  things,  can  never  be  the 
the  "field  of  fame"  for  judges;  and  I  am  so  sensible  that  it  is  the 
last  place  that  we  should  voluntarily  select  for  our  discussions, 
that,  on  more  occasions  than  one,  when  I  have  seen  my  opinions 
at  Circuit  incorrectly  stated,  I  have  declined  publishing  the  opinion 
really  delivered,  because  I  did  not  think  it  proper  for  a  Judge  of 
the  Supreme  Court  to  go  into  the  newspapers  to  discuss  legal 
questions. 

*2  Tyler,  p.  307.  Peters  had  proposed  to  dedicate  his  digest  to  the  Chief 
Justice  and  Taney  esteemed  it  *'no  small  honor"  to  have  his  name  associated 
with  the  book,  but  should  "chiefly  value  it,  as  the  evidence  of  the  friendship 
and  kind  feelings  we  have  cherished  for  each  other." 


ROGER  BROOKE  TANEY  207 

Biddle^^  considered  that  Taney's  "opinion  exhibits, 
in  a  high  degree,  the  ability  of  the  Chief  Justice  to 
present  an  argument  upon  a  technical  point,  with  the 
nicest  precision  of  reasoning,  the  closest  application  of 
the  rules  for  the  exposition  of  Statutes,  and  the  fullest 
and  fairest  examination  of  the  grounds  upon  which  the 
opposing  argument  is  based. " 

He  had  originally  intended  merely  to  concur  with  a 
dissenting  opinion  written  by  Judge  Baldwin,  but  the 
publications  led  him  to  change  his  mind  and  he  wrote  a 
separate  dissent,  which  he  would  send  Peters,  *'as 
soon  as  it  is  brought  within  proper  dimensions."  He 
found  the  opinion  "longer  than  I  like  and  I  retain  it 
for  the  purpose  of  condensing  the  argument."  Taney 
was  rarely  prolix  and  closed  his  letter  thus:  "You 
know  my  settled  dislike  to  a  long  opinion,  when  justice 
to  the  case  can  be  done  by  a  short  one.  Yet  I  fear  I 
sin  in  unnecessary  length,  as  often  as  any  of  my  brethren." 

In  1839,  Taney  filed  the  Court's  opinion  in  one  quite 
important  case — the  Bank  of  Augusta  v.  Earle^^  The 
case  had  come  up  from  Alabama,  and  was  one  of  assump- 
sit on  a  bill  of  exchange^^  but  these  corporation  cases 
(for  two  other  cases  depended  on  the  same  principle) 
took  their  chief  value  because  in  them  was  involved  an 
important  constitutional  question  in  reference  to  the 
States:  viz.,  are  the  corporations,  created  by  the 
Statutes  of  one  State,  permitted  by  comity  to  make 
contracts  in  other  States  and  sue  in  their  tribunals. 
The  particular  question  involved  in  the  case  was  this — 
may  a  bank  incorporated  by  Georgia  with  power  to 
purchase  bills  of  exchange,  purchase  them  in  Alabama, 

*3  Const.  Hist,  of  the  U.  S.  as  Seen  in  the  Development  of  Am.  Law  p.  137. 

«  13  Peters  519.    Tyler,  p.  281. 

"  Vandegraff  and  Webster  were  the  attorneys  for  the  parties. 


208  ROGER  BROOKE  TANEY 

or  is  such  purchase  void?  Many  such  contracts  had 
been  made,  so  that  the  question  was  of  a  "very  grave 
character,"  from  the  amount  of  money  involved. 
"Whenever  a  corporation,"  in  Taney's  words,^^  "makes 
a  contract,  it  is  a  contract  of  the  legal  entity  of  the 
artificial  being  created  by  the  charter  and  not  the  con- 
tract of  the  individual  members,"  so  that  the  acts  per- 
formed must  be  such  as  are  authorized  by  the  charter 
and  must  be  made  by  the  officers  and  in  the  manner 
authorized  thereby.  If  the  law  creating  a  corporation 
does  not  give  it  the  right  to  exercise  powers  beyond  the 
limits  of  the  State  chartering  it,  the  contracts  made 
outside  that  State's  jurisdiction  are  void,  but  here 
Georgia  "clothed  the  corporation  with  the  right  to 
make  contracts"  out  of  the  State,  in  so  far  as  Georgia 
could  do  it.  The  purchase  of  the  bill  of  exchange  was, 
therefore,  the  exercise  of  power  possessed  by  the  Bank 
under  its  charter.  The  question  then  came  before  the 
Court:  Can  the  laws  of  a  State  have  an  extra  terri- 
torial operation,  or  can  a  corporation,  a  creature  of  the 
laws  of  a  State,  have  existence  beyond  the  limits  within 
which  that  law  operates?  Taney  thus  answered  the 
question  : 

It  is  very  true  that  a  corporation  can  have  no  legal  existence 
outside  of  the  boundaries  of  the  sovereignty  by  which  it  is  created. 

It  must  dwell  in  the  place  of  its  creation  and  cannot 

migrate  to  another  sovereignty Yet  it  does  not,  by 

any  means,  follow  that  its  existence  will  not  be  recognized  in 
other  states,  and  residence  in  one  State  creates  no  insuperable 

objection  of  its  power  of  contracting  in  another 

Natural  persons,  through  the  intervention  of  agents,  are  con- 
tinually making  contracts  in  countries  where  they  do  not  reside 
and  where  they  are  not  personally  present  when  the  contract  is 

«  Page  587. 


ROGER  BROOKE  TANEY  209 

made,  and  nobody  has  ever  doubted  the  validity  of  these  agree- 
ments. And  what  greater  objection  can  there  be  to  the  capacity 
of  an  artificial  person  by  its  agents  to  make  a  contract  within  the 
scope  of  its  limited  powers,  in  a  sovereignty  in  which  it  does  not 
reside,  provided  such  contracts  are  permitted  to  be  made  by  them 
by  the  laws  of  the  place? 

It  is  sufficient  that  its  existence  as  an  artificial  person  in  the 
State  of  its  creation  is  acknowledged  and  recognized  by  the  law 
of  the  nation  where  the  dealing  takes  place  and  that  it  is  permitted 
by  the  laws  of  that  place  to  exercise  there  the  powers  with  which 
it  is  endowed. 

He  then  elaborately  discussed  the  question  whether 
corporations  of  one  State  are  permitted  to  make  con- 
tracts in  another  by  the  comity  of  nations  and  by  the 
comity  existing  between  the  States  and  decided  that 
"comity  is  no  impeachment  of  sovereignty,  but  is  a 
voluntary  act  of  the  nation  by  which  it  is  offered.  But 
it  contributes  so  largely  to  promote  justice  between 
individuals  and  to  produce  a  friendly  intercourse 
between  the  sovereignties  to  which  they  belong,  that 
courts  of  justice  have  continually  acted  upon  it,  as  a 
part  of  the  voluntary  law  of  nations."  No  sufftcient 
reason  is  found  for  excluding  foreign  corporations  from 
such  comity,  "when  they  are  not  contrary  to  the 
known  policy  of  the  State,  or  injurious  to  its  institu- 
tions." The  State  merely  admits  the  existence  of  an 
artificial  person  and  recognizes  the  law  of  the  foreign 
State.  States  in  the  Union  here  stand  upon  not  quite 
the  same  footing  as  foreign  countries.  "The  intimate 
Union  of  these  States,  as  members  of  the  same  political 
family;  the  deep  and  vital  interests  which  bind  them 
so  closely  together  should  lead  us,  in  the  absence  of 
proof  to  the  contrary,  to  presume  a  greater  degree  of 
comity  and  friendship  and  kindness  towards  one  another 


210  ROGER  BROOKE  TANEY 

than  we  should  be  authorized  to  presume  between 
foreign  nations."  These  "sovereign  States,"  in  their 
history  and  in  "the  events  which  are  daily  occurring, 
furnish  the  strongest  evidence  that  they  have  adopted 
towards  each  other  the  laws  of  comity  to  their  fullest 
extent."  If  a  corporation  may  sue  in  the  courts  of  a 
state,  there  is  no  reason  why  it  may  not  make  a  con- 
tract. Both  comity  of  contract  and  comity  of  suit 
are  part  of  the  law  of  the  State.  Pennsylvania  prohib- 
its the  making  of  certain  contracts  by  foreign  corpora- 
tions— a  statute  which  shows  that  any  other  such  con- 
tracts are  legal,  and  the  Maryland  law  provides  a  way 
to  enforce  such  contracts.  The  Alabama  law  is  not 
against  the  suit  of  a  foreign  corporation  and  the  State 
itself  is  not  a  party  to  the  suit.  The  contracts  were 
made  in  good  faith,  a  fact  which  shows  what  was  the 
generally  received  opinion  in  Alabama,  at  the  time  of 
making  the  contract. 

This  strong  opinion  showed  Taney's  Federal  opinions 
and  has  been  a  valuable  precedent  for  many  other  cases, 
furnishing  correct  doctrine  to  subsequent  generations 
of  judges.  Biddle®^  wrote  of  it  as  a  "compact,  well- 
reasoned  opinion,  ....  remarkable  in  its  statement 
of  the  law,  as  well  in  what  it  affirms  of  the  arguments 
of  the  very  eminent  counseP^  who  represented  the 
different   plaintiffs  in  error." 

Story  on  April  19,  1839,  wrote  Taney  from  Cambridge, 
Mass.,^^  "your  opinion  in  the  corporation  cases  has 
given  very  general  satisfaction  to  the  public,  and,  I 
hope  you  will  allow  me  to  say,  that,  I  think  it  does 
great  honor  to  yourself  as  well  as  to  the  Court." 

"  Const.  Hist.,  p.  141. 
''  Ogden,  Sergeant  and  Webster. 

"Tyler,  p.  288.  Tyler  speaks  of  the  extensive  correspondence  between 
Story  and  Taney,  which  I  have  not  found. 


ROGER  BROOKE  TANEY  211 

At  the  same  term  of  Court,  Taney  filed  an  opinion 
in  an  action  of  ejectment,^''  in  which  the  date  of  the 
cession  of  the  District  of  Columbia  to  the  United  States 
was  involved  and  in  which  he  said,  in  reference  to  the 
manner  of  signing  deeds,  "if  Maryland  Courts  had 
given  a  contrary  construction,  we  should,  of  course, 
feel  it  to  be  our  duty  to  follow  their  decision." ^i  Most 
of  his  other  opinions,  during  that  year,  were  upon 
points  of  precedure.^2 

In  1840,  Taney's  chief  opinion  was  that  in  the  case 
of  Holmes  v.  Jennison;^^  a  case  in  which  there  was  so 
divided  a  court  that  no  official  opinion  was  filed.  Taney 
joined  with  Story,  McLean  and  Wayne  in  the  majority 
and  the  very  list  of  names  shows  that  the  decision  was 
no  States'  Rights  one.  Buchanan,  in  a  speech  delivered 
in  Congress  on  May  9,  1842,^*  attacked  Taney's  opinion 
in  this  case,  saying:  "I  have  always  entertained  the 
highest  respect  for  the  present  distinguished  Chief 
Justice  of  the  United  States,  but  ....  some 
portions  of  his  opinion  ^^  in  this  case  are  latitudinous  and 
centralizing  beyond  anything  I  have  ever  read  in  any 
other  judicial  decision."  Story,  on  the  other  hand^* 
wrote  in  May,  1840,  to  Mr.  Peters,  the  Reporter  of  the 

7°  Van  Ness  v.  Bank  of  U.  S.    13  Peters  17. 

'1  Page  21. 

'2  (1)  13  Peters  23  R.  I.  v.  Mass.  The  Court  will  not  apply  to  suits  between 
States  the  same  rules  as  to  an  answer  which  govern  individuals,  (2)  13  Peters 
153  Reed'slessee  v.  Marsh  New  Trial,  (3)  13  Peters  225  Ex  parte  Hennen,  A  judge 
of  the  Supreme  Court  has  no  power  in  the  August  term  to  allow  a  rule  to  show 
cause  why  a  mandamus  should  not  issue.  The  only  other  opinion  was  in 
Andrews  v.  Pond  13  Peters  42,  a  case  involving  protested  bills,  charge  for 
exchange,  and  usurious  contracts. 

73 14  Peters  540. 

74  Works  v.  238. 

75  Especially  pp.  569-570. 
78  Tyler,  p.  290. 


y 


212  ROGER  BROOKE  TANEY 

Supreme  Court:  "In  my  judgment  the  opinion  of  the 
Chief  Justice  in  the  Habeas  Corpus  case  is  a  masterly 
one  and  does  his  sound  judgment  and  discrimination 
very  great  credit.  I  think  it  will  (as  it  ought)  elevate 
his  judicial  reputation.  I  entirely  concurred  in  that 
opinion  with  all  my  heart ;  and  was  surprised  that  it  was 
not  unanimously  adopted.  "^^ 

The  circumstances  of  the  case  were  these:  Holmes, 
a  Canadian,  was  accused  of  a  murder  committed  in  the 
Quebec  District  of  Canada  and  the  Canadian  authori- 
ties requested  the  Governor  of  Vermont  to  order  his 
delivery  to  them.  The  Governor  issued  orders  to  the 
Sheriff  to  do  this  and  the  Vermont  Court  upheld  him, 
when  a  writ  of  habeas  corpus  was  sued  out  by  Holmes, 
in  order  to  resist  extradition.  The  question  which 
came  before  the  Supreme  Court  for  final  judgment  was 
whether  this  action  was  in  accordance  with  the  United 
States  Constitution  and  the  Court  decided  that  it  had 
no  jurisdiction,  upon  a  writ  of  error,  to  revise  the  deci- 
sion of  a  State  Court  on  a  writ  of  Habeas  Corpus  which 
remands  a  prisoner  to  the  custody  of  a  sheriff  under 
warrant  of  the  Governor  of  a  State  to  be  delivered  to 
the  authorities  of  a  foreign  country,  there  to  be  tried 
for  crime.  The  Court's  inquiry  involved  the  relative 
powers  of  the  Federal  and  State  Governments.  Taney's 
opinion  was  that  the  power  to  surrender  would  not 
differ  whether  the  person  arrested  were  a  foreigner,  or  a 
citizen  of  the  United  States.  "If  this  power  remains 
with  the  States,  then  every  State  in  the  Union  must 
;  determine  for  itself  the  principles  upon  which  they 
I  will  exercise  it  and  there  will  be  no  restriction  upon 
(   the  power,  but  the  discretion  and  good  feeling  of  each 

''"'  Peters  quoted  this  letter  to  Taney,  who  responded  that  he  was  "not  a 
little  gratified"  at  Story's  judgment  and  that  his  praise  was  "worth  receiving.'^ 


ROGER  BROOKE  TANEY  213 

particular  State."  The  power  is  a  part  of  the  foreign 
intercourse  of  this  country  and  that  has  undoubtedly 
been  referred  to  the  Federal  Government.  It  is  an 
exclusive  one,  for  it  is  forbidden  to  the  States^^  to  enter 
into  any  agreement  with  foreign  States  and  there  has 
clearly  been  an  agreement  made,  between  Vermont  and 
Canada,  to  deliver  Holmes.  Furthermore  this  power  is 
incompatible  with  powers  conferred  on  the  Federal 
Government.  "In  expounding  the  Constitution  of  the 
United  States,  every  word  must  have  its  due  force  and 
appropriate  meaning;  for  it  is  evident,  from  the  whole 
instrument,  that  no  word  was  unnecessarily  used,  or 
needlessly  added."  This  is  good  Federalist  doctrine 
and  Taney  affirmed  that  ''the  framers  of  the  Constitu- 
tion, manifestly,  believed  that  any  intercourse  between 
a  State  and  foreign  nation  was  dangerous  to  the  Union ; 
that  it  would  open  a  door  of  which  foreign  powers  would 
avail  themselves  to  obtain  influence  in  the  separate 
States."  If  the  "power  remain  in  the  States,  the 
grant  to  the  general  government  is  nugatory  and  vain." 
Taney  maintained  that  "it  is  not  the  mere  power  to 
deliver  up  fugitives  from  other  nations"  on  the  demand 
of  these  nations,  that  was  here  involved;  but  rather 
the  right  to  "determine  whether  or  not  they  ought  to 
be  delivered  and  to  make  that  decision  effectual." 
Different  States  might  decide  the  question  differently. 
The  power  was  not  a  part  of  the  police  power  and  was 
of  no  advantage  to  the  States.  Most  people  today 
would  agree  to  Taney's  assertion  that  it  was  "one  of  the 
main  objects  of  the  Constitution,  so  far  as  regarded  our 
foreign  relations,  to  make  one  people  and  one  nation, 
and  to  cut  off  all  communications  between  foreign 
governments  and  the  several  State  authorities."     The 

'8  Const.  Art.  1,  Sec.  10,  clauses  1  &  2. 


214  ROGER  BROOKE  TANEY 

majority  of  the  Court  would  not  adopt  this  view  and 
strangely  enough,  the  man  who  wrote  it  has  been  called 
an  advocate  of  States'  Rights. 

Taney  has  been  accused  of  being  a  friend  of  slavery,  but 
he  did  not  show  such  leaning  in  the  opinion  in  the  case 
of  the  United  States  v.  Morris,  ^^  in  which  a  vessel  had 
been  seized  on  a  voyage  from  Cuba  to  Africa.  He  held 
that,  to  constitute  offences  denounced  in  the  act  of 
1800  aginst  the  foreign  slave  trade,  it  was  not  necessary 
that  there  **  should  be  an  actual  transportation  of 
slaves"  in  a  vessel.  There  was  sufficient  evidence,  if  a 
vessel  was  shown  to  have  been  bound  for  the  coast  of 
Africa,  "for  the  purpose  of  taking  slaves  on  board  to  be 
transported  to  some  foreign  country,  and  the  defendant, 
having  knowledge  of  the  business  and  being  an  American 
citizen,  was  on  board  voluntarily." 

In  another  case  dealing  with  external  matters,  Taney 
held^^  that  the  decision  of  the  Board  upon  French 
treaty  claims,  under  the  Act  of  1831,  as  to  the  seizure  of 
a  vessel's  cargo  in  1809  and  the  rights  of  conflicting 
claimants,  was  not  conclusive,  but  that  the  question  of 
the  respective  title  was  fully  open  to  be  adjudicated  by 
the  Courts.  Foreign  trade  in  war  time  was  also  in- 
volved in  the  case  of  a  vessel  seized  while  sailing  from 
Buenos  Ayres  to  Brazil,  ^^  concerning  which  seizure 
Taney  was  of  opinion  that  as  the  covering  of  belligerent 
property  by  neutral  papers  was  not  so  illegal  as  to 
prevent  the  enforcement  of  contracts  based  on  that 
property,  consequently,  "money  recovered  from  a 
foreign  government,  as  compensation  for  the  capture  of 

'« 14  Peters  464. 

80  Prevail  v.  Bache  14  Peters  95. 

"1  De  Valengin's  Administrators  v.  Duffy,  14  Peters  282. 


ROGER  BROOKE  TANEY  215 

property  so  covered,"  was  not  so  tainted,  but  that  the 
true  owner  could  recover  from  the  ostensible  owner.  ^^ 
Questions  of  jurisdiction,  of  course,  fell  to  Taney  and 
he  held  that  a  mandamus  will  not  issue  to  compel  the 
Secretary  of  the  Navy  to  perform  a  discretionary  act 
for  the  benefit  of  a  commodore's  widow.  "The  inter- 
ferences of  the  courts ^^  with  the  performance  of  the 
ordinary  duties  of  the  executive  departments  of  the 
government  would  be  productive  of  nothing  but  mis- 
chief."^* In  reference  to  the  judgments  of  the  State 
Courts,  Taney  held  that  the  Supreme  Court  could  not^^ 
examine  the  question  as  to  whether  one  decree  of  a 
State  Court  is  in  collision  with  another  decree  of  the 
same  court  in  a  second  suit  concerning  the  same  subject 
matter. ^^  If  the  decision  of  a  State  Court^^  is  against 
the  validity  of  a  State  law  which  was  alleged  to  con- 
travene the  Federal  Constitution,  the  Supreme  Court 
had  no  jurisdiction;  for  the  power  given  it  "was  in- 
tended to  protect  the  general  government,  in  the  free 
and  uninterrupted  exercise  of  the  powers  conferred  on 
it  by  the  Constitution  and  to  prevent  any  serious  im- 
pediment being  thrown  in  its  way,  while  acting  within 
the  sphere  of  its  legitimate  authority. "^^ 

82  When  property  has  been  lawfully  received  by  an  administrator  after  death 
of  an  intestate,  in  virtue  of  his  representative  character,  he  is  liable  for  it,  either 
in  that  character,  or  personally,  at  the  election  of  the  party  having  a  good  title. 

^  Decatur  v.  Paulding  14  Peters  477.     Several  opinions  were  filed. 

^  In  U.  S.  v.  Stone  14  Peters  524,  the  Court  discussed  the  jurisdiction  in 
suits  appealed  from  Circuit  and  district  courts. 

85  Mitchell  v.  Lenox,  14  Peters  49. 

8^  In  West  v.  Brashear,  14  Peters  51,  Taney  gave  opinion  that  the  mandate 
of  the  Supreme  Court  to  a  Circuit  Court  must  be  the  latter's  guide  in  executing 
judgments,  but  that  the  mandate  may  be  interpreted  by  the  decision  delivered 
in  the  case. 

8^  Commonwealth  Bank  of  Kentucky  v.  Grilfith,  14  Peters  56. 

88  In  an  action  of  ejectment,  coming  from  the  District  of  Columbia  (Rem- 
ington v.  Linthicum,  14  Peters  84),  he  stated  that  the  Court  upheld  the  Mary- 


216  ROGER  BROOKE  TANEY 

The  boundary  di3pute  between  Rhode  Island  and 
Massachusetts  was  again  before  the  Court  in  1840^^  and 
Taney  delivered  the  opinion,  not  on  the  merits  of  the 
case,  but  upon  the  technicalities  of  pleading.  He  held 
that  the  case,  which  was  one  of  first  impression,  but 
which  has  had  a  number  of  successors,  to  which  States 
have  been  parties,  should  be  conducted,  according  to 
Chancery  pleading  and  practice  rules,  yet  so  moulded 
and  applied  as  to  bring  the  cause  to  a  hearing  on  its 
entire  merits  and  that  it  should  not  be  decided  on 
merely  technical  principles  of  chancery  pleading.  When 
a  decision  on  a  plea  concerning  the  boundary  might 
have  the  effect  of  keeping  out  of  view  some  part  of  the 
merits  of  the  complainant's  case,  the  Court  should  re- 
fuse to  decide  the  case  on  that  plea.  The  charter  of 
Massachusetts  placed  the  south  boundary  of  that 
Province  three  miles  south  of  the  Charles  River.  Com- 
missioners laid  out  a  line  between  the  two  colonies 
between  1710  and  1718,  but  Rhode  Island  claimed  that 
she  never  accepted  their  decision.  The  line  as  run, 
finally  in  1719,  was  7  miles,  not  3  miles,  south  of  the 
Charles  and,  when  Rhode  Island  discovered  this  fact 
in  1749,  she  attempted  to  bring  suit  before  the  British 
Privy  Council.  The  poverty  of  the  Colony  and  the 
coming   of   the    Revolutionary   war   caused   delay.     In 

land  law  that  seizure  and  sale  of  land  on  a  fieri  facias  passes  title  and  that  a 
return  on  an  execution  duly  made  at  any  time  before  trial  is  sufficient.  In  the 
case  of  the  Bank  of  Alexandria  v.  Dyer,  14  Peters  141,  Taney  again  interpreted 
a  Maryland  law,  stating  that  the  term  "beyond  seas,"  in  the  Statute  of  limita- 
tions as  in  force  in  Maryland  and,  consequently,  in  force  in  the  District,  did  not 
exclude  Alexandria,  which  was  formerly  in  Virginia.  In  Brewer's  Lessee  v. 
Blougher  14  Peters  178,  he  held  that  the  act  of  Maryland  of  1825,  declaring 
that  illegitimate  children  were  capable  of  inheriting  from  their  mother,  or  each 
other,  was  not  limited  to  the  children  of  those  capable  of  intermarriage,  but 
also  extends  to  the  offspring  of  incest. 
89 14  Peters  210. 


ROGER  BROOKE  TANEY  217 

1782  and  again  in  1818,  Rhode  Island  took  up  the 
matter,  but  no  line  was  finally  determined.  Massa- 
chusetts claimed  from  a  monument  erected  in  1642  and 
insisted  on  the  line  of  1719.  Her  plea  would  have 
caused  the  case  finally  to  be  disposed  of  on  an  issue 
highly  disadvantageous  to  Rhode  Island;  but  as  it 
set  up  both  an  accord  and  compromise  and  also  undue 
lapse  of  time  on  the  part  of  the  defence,  Taney,  for  the 
Court,  said  the  plea  was  bad  for  duplicity. ^^ 

In  1841,  Taney's  opinions  are  not  so  important  and  in 
the  most  important  case,  that  of  the  Amistad,  he  did 
not  render  the  opinion. ^^  He  gave  the  Court's  opinion 
in  the  Rhode  Island-Massachusetts  boundary  case  in 
which  a  demurrer  by  the  latter  State^^  was  over-ruled. 
Taney  said  that  lapse  of  time,  sufficient  to  create  a 
bar  of  limitations,  might  be  taken  advantage  of  by 
demurrer,  but  that  the  period  of  twenty  years  was  not 
to  be  applied  between  States,  where  all  the  circum- 
stances must  be  considered  and  the  amount  and  kind  of 
acquiescence  ascertained.  Two  political  communities 
are  concerned,  who  cannot  act  with  the  same  prompt- 
ness as  individuals,  and  the  boundary  was  in  a  wild 
unsettled  country,  while  the  only  tribunal  in  colonial 
days  was  on  the  other  side  of  the  Atlantic.  ^^ 

^°  On  land  grants,  see  opinions  in  Lattimer  v.  Poteet,  14  Peters  4,  where 
Taney  concurred  in  the  decision  that  North  Carolina  could  not  grant  lands 
in  the  Indian  country  and  that  such  grants  were  invalid;  but  dissented  from 
the  opinion,  in  that  it  found  the  Hawkins'  line  the  true  one  established  by  the 
United  States  in  accordance  with  the  treaty  of  Holston  (See  Keene  v.Whitaker 

14  Peters  170). 

®^  J.  Q.  Adams  Diary  10,  pp.  399,  431,  432.     Story  delivered  the  opinion, 

15  Peters  513. 

92 15  Peters  233. 

33  Other  opinions  of  Taney  at  this  term  were:  (l)  Coons  v.  Gallagher  15 
Peters  18.  Under  the  Judiciary  Act  Section  25,  the  question  mentioned  must 
appear  in  the  judgment  below  (an  ejectment  case)  in  terms,  or  by  necessary 


f 


218  ROGER  BROOKE  TANEY 

I  __Groves  v.  Slaughter  was  an  important  case,  involving 
the  importation  of  slaves  into  Mississippi  for  sale.  Clay 
and  Webster  were  among  the  counsel  and  Justice 
Thompson  delivered  the  opinion  of  the  Court,  in  which 
it  was  stated  that  the  power  of  Congress  to  regulate  the 
traffic  in  slaves  between  the  different  States  was  not 
involved  in  the  case.  Justice  McLean,  however,  in  a 
concurring  opinion  stated  his  opinion  upon  that  point. 
Taney  was  "not  willing,  by  remaining  silent,  to  have 
any  doubt"  as  to  his  opinion  upon  the  same  point,  but 
^  /  I  stated  that,  in  his  **  judgment,  the  power  over  this  sub- 
;  ject  is  exclusively  with  the  several  States."  He  does 
\  not  "argue  this  question;"  but,  states  his  opinion,  "on 
L  account  of  the  interest  which  a  large  portion  of  the  Union 
naturally  feel  in  this  matter  and  from  an  apprehension 
that  my  silence,  when  another  member  of  the  Court  has 
delivered  his  opinion,  might  be  misconstrued."  He, 
furthermore,  refused  to  express  an  opinion  as  to  whether 
the  "grant  of  power  to  the  general  government  to 
regulate  commerce,  does  not  carry  with  it  an  implied 
prohibition  to  the  States  to  make  any  regulations  upon 
the  subject,  even  although  they  should  be  altogether 
consistent  with  those  made  by  Congress."  This  ques- 
tion was  "one  step  further  out  of  the  case  really  before" 
the  Court,  and  may  await  the  time  when  "some  prac- 
tical purpose  is  to  be  answered  by  deciding  it."^^ 

intendment,  and  it  must  also  appear  the  decision  was  against  the  right  claimed; 
(2)  Ex  Parte  Crenshaw  15  Peters  119.  A  decree  was  revoked  when  the  appellee, 
had  not  been  cited  as  required  by  Act  of  Congress;  (3)  Lee  v.  Kelly  15  Peters  213 
on  final  decrees  and  appeal;  (4)  Gwinn  v.  Breedlove  15  Peters  284,  on  reinstate- 
ment of  a  case.  (5)  Houseman  v.  Schooner  North  Carolina,  15  Peters  40  (a 
salvage  case),  Taney  considered  the  conduct  of  the  Captain  in  paying  salvors 
and  held  that,  by  fraudulent  conduct,  they  forfeited  all  claim  for  compensation 
and  the  act  of  the  Captain  should  be  repudiated. 

94  Groves  v.  Slaughter  15  Peters  449,  508-10.  Biddle  p.  147,  said  Taney 
showed  anxiety  to  leave  the  whole  subject  of  this  peculiar  domestic  institution 
to  the  exclusive  control  of  the  States  themselves. 


ROGER  BROOKE  TANEY  219 

In  1842,  Taney's  most  important  opinion  was  a 
dissenting  one  in  the  case  of  Prigg  v.  Pennsylvania,^^  a 
case  which  Henry  Wilson  in  his  ''Rise  and  Fall  of  the 
Slave  Power"  styles  as  ''dangerous."  "From  the 
only  good  part  of  the  decision,"  Wilson  considered 
Taney  to  dissent.  ^^  The  antislavery  men  maintained 
that  the  Slave  power  took  the  decision  in  this  case  as 
a  "new  concession  and  guarantee. "^^  Several  opinions 
were  rendered  in  this  case  and  Taney  disagreed  with 
some  of  the  majority's  reasoning,  though  not  with  their 
conclusion. 

Under  the  Constitution  of  the  United  States,  the 
owner  of  a  slave  was  clothed  with  entire  authority  in 
every  State  to  seize  and  recapture  his  slave,  whenever 
he  could  do  so  without  breach  of  the  peace,  or  any 
illegal  violence.  The  fugitive  slave  act  of  1793  was 
considered  constitutional  by  the  Court  and,  as  the 
Pennsylvania  Statute  of  1826  was  in  conflict  therewith, 
it  was  held  to  be  void  and  a  conviction  under  it  was 
erroneous.  The  plaintiff's  attorneys  argued,  "under 
the  authority  of  the  State  of  Maryland,"  and  Story 
delivered  the  Court's  opinion,  showing  that  there  was 
no  division  upon  sectional  lines.  A  negro  woman 
slave  had  escaped  from  Maryland  to  Pennsylvania  in 
1832  and,  in  1837,  Prigg,  as  her  owner's  agent,  caused  a 
constable  in  York  County  to  seize  her.  The  magis- 
trate, before  whom  the  woman  w^as  brought  refused  to 
consider  the  case  and  Prigg  then  carried  to  Maryland 
the  woman  and  her  children,  one  of  whom  was  born  in 
Pennsylvania  a  year  after  her  escape.  The  State  of 
Pennsylvania  sued  Prigg  for  carrying  away  the  woman. 

^  16  Peters  537  at  626. 

»«I  470-473. 

e7 15  Atlantic  Monthly  151.    C.  M.  Ellis. 


220  ROGER  BROOKE  TANEY 

In  the  Court's  opinion,  which  decided  the  case  in  Prigg's 
favor,  Justice  Story  remarked  that  "few  questions 
which  have  ever  come  before  this  Court  involve  more 
delicate  and  important  considerations,  and  few  upon 
which  the  public  at  large  may  be  presumed  to  feel 
more  profound  and  pervading  interest."  Slavery  was  a 
creation  of  municipal  law  and,  without  the  constitu- 
tional provision,  a  free  State  might  at  once  have  freed 
each  escaped  slave  within  its  borders — "a  course  which 
would  have  created  the  most  bitter  animosities  and 
engendered  perpetual  strife  between  the  different 
States."  To  prevent  this  condition  of  affairs,  "this 
fundamental  article"  was  inserted  in  the  Constitution. 
Legislation  was  needed  to  "protect  the  right  to  enforce 
the  delivery  and  to  secure  the  subsequent  possession  of 
the  slave."  States  cannot  be  compelled  to  enforce  it, 
or  to  "provide  means  to  carry  into  effect  the  dutifes  of 
National  Government."  The  law  of  1793  is  constitu- 
tional under  the  implied  powers  of  Congress  and  the 
power  depends  exclusively  upon  the  United  States 
Constitution  and  hence  is  not  concurrent  with  the  States. 
The  nature  and  objects  of  the  provision  in  the  Constitu- 
tion require  a  uniform  system  of  regulations.  Taney 
disagreed  with  that  part  of  the  opinion  which  main- 
tained that  the  power  was  exclusively  a  National  one 
and  held  that  the  State  authorities  were  not  "prohibited 
from  interfering,  for  the  purpose  of  protecting  the  right 
of  the  master  and  aiding  him  in  the  recovery  of  his 
property."  The  Constitution  merely  prohibited  the 
States  from  passing  laws  "impairing  the  right"  and, 
consequently,  the  power  of  the  States  to  "support  and 
enforce"  that  right  is  "necessarily  implied."  Taney 
continued  with  the  assertion,  which  has  the  true  Federal- 
ist and  Jacksonian  ring,  that  "The  Constitution  of  the 


ROGER  BROOKE  TANEY  221 

United  States,  and  every  article  and  clause  in  it,  is  a 
part  of  the  law  of  every  State  in  the  Union  and  is  the 

paramount    law Why    may    not   a    State 

protect  an  article  of  property  acknowledged  by  its  own 
paramount  law?  Other  rights  of  property  are  pro- 
tected for  citizens  of  other  States  by  the  States."  Why 
may  not  slaves  be  so  protected?  The  delay  of  four  years 
in  passing  the  National  law,  after  the  Federal  govern- 
ment was  organized,  confirmed  his  view.  "The  State 
officers  mentioned  in  that  law  are  not  bound  to  execute 
the  duties  imposed  upon  them  by  Congress,  unless  they 
choose  to  do  so,  or  are  required  to  do  so  by  a  law  of  the 
State,  and  the  State  legislature  has  the  power,  if  it 
thinks  proper,  to  prohibit  them.  The  Act  of  1793 
must  depend  altogether  for  its  execution  upon  the 
officers  of  the  United  States  named  in  it." 

Congress  never  designed,  in  Taney's  opinion,  that  a 
master  should  be  compelled  to  go  before  a  District 
Judge,  but  the  act  showed  that  the  ''cordial  cooperation 
of  the  States  was  counted  upon."  Maryland  had 
passed  such  a  law  which  was  continually  appealed  to, 
as  fugitives,  passing  through  the  State  on  their  way  to 
Canada,  were  captured.  The  arrest  and  confinement 
of  the  fugitive  were  not  necessary  for  the  internal  peace 
of  the  State,  so  that  such  a  law  is  no  police  regulation, 
but  one  giving  effect  to  the  provisions  of  the  Federal 
Constitution.^^ 

Taney's  other  opinions  that  year  were  of  little  im- 
portance.^^    In    two    patent    cases    Taney    wrote    the 

98  Vide  Tyler,  p.  283. 

'*They  were  in  the  cases  of  (1)  Fulton  v.  M'Affee  (a  question  of  procedure 
and  jurisdiction)  16  Peters  149;  (2)  Kelsey  v.  Hobby  (Liquidation  of  partnership, 
release  and  cross  bills),  16  Peters  269;  (3)  Parish  v.  Ellis  (Dower  in  Florida),  16 
Peters  513;  (4)  Mills  v.  Brown  (no  jurisdiction  existed  in  the  Supreme  Court, 


222  ROGER  BROOKE  TANEY 

opinion,  in  one  of  which  the  position  was  taken  that  a 
combination  of  three  distinct  things  was  not  infringed 
by  combining  two  of  them  with  a  fourth  thing. ^^^ 

In  Martin  v.  WaddelU^^  two  justices  dissented  from 
Taney's  opinion  in  a  case  of  ejectment  for  one  hundred 
acres  of  land  covered  with  water  at  Perth  Amboy  in 
New  Jersey.  The  principal  right  in  dispute  was  the 
property  in  the  oyster  fisheries  and  the  Court  had  to 
consider  the  rights  arising  under  colonial  grants  from 
the  Crown  of  England.  After  stating  that  "the  English 
possessions  in  America  were  not  claimed  by  right  of 
conquest"  from  the  Indians,  who  were  "regarded  as 
temporary  occupants  of  the  soil;"  but  "by  right  of 
discovery,"  Taney  briefly  summed  up  the  English 
law  on  the  subject  of  grants  of  fisheries  but  said  that 
this  had  "ceased  to  be  a  matter  of  much  interest  in 
the  United  States,  for  when  the  Revolution  took  place, 
the  people  of  each  State  became  themselves  sovereign; 
and  in  that  character  hold  the  absolute  right  to  all 
their  navigable  waters  and  the  soils  under  them  for 
their  own  common  uses,  subject  only  to  the  rights  since 
surrendered  by  the  Constitution  to  the  general  govern- 
ment." He  then  proceeded  to  examine  whether  the 
"dominion  and  propriety  in  the  navigable  waters  and 
in  the  soils  under  them  passed  as  a  part  of  the  preroga- 
tive rights  annexed  to  the  political  powers  conferred 
on  the  duke"  of  York  by  Charles  II  in  his  original 
grant.  Taney  held  that  the  charter  should  not  be 
construed    technically,    but   as    "an    instrument   upon 

when  it  did  not  appear  in  the  record  that  a  Constitutional  question  was  raised 
in  the  Court  below),  16  Peters  525. 

^°°Prouty  V.  Ruggles  (a  plough  patent)  16  Peters  336,  the  other  case  was 
Carver  v.  Hyde  16  Peters  513. 

"1 16  Peters  367. 


ROGER  BROOKE  TANEY  223 

which  was  to  be  founded  the  institutions  of  a  great 
political  community."  Consequently,  the  waters  and 
the  underlying  soil  were  to  be  held  as  a  public  trust„ 
The  subsequent  history  of  New  Jersey  showed  that  the 
people,  until  a  very  recent  date,  had  enjoyed  the  rights 
of  "fishery  for  shell  fish,  as  a  common  and  undoubted 
right,"  which  the  Court  sustained  against  a  claim  of 
proprietary  right. 

In  1843  Taney's  chief  opinion  related  to  a  bequest  of 
slaves  in  Maryland  to  a  man,  "provided  he  shall  not 
carry  them  out  of  the  State  of  Maryland,  or  sell  them 
to  anyone, — in  either  of  which  events,  1  will  and  devise 
the  said  negroes  to  be  free  for  life."  The  Court  held 
this  to  be  a  valid  conditional  ^^  limitation  of  freedom 
to  the  slaves,  which  took  effect  upon  a  sale  of  them.  A 
bequest  of  freedom  to  slaves  in  Maryland  was  considered 
a  specific  legacy.  If  the  legatee  had  died  without  a 
sale  or  transportation,  the  petitioners  would  have  con- 
tinued slaves  for  life  and  the  event  was  not  too  remote, 
nor  was  there  an  unlawful  restraint  upon  alienation. 

In  another  case,^^^  a  mortgage  contained  a  power  to  a 
creditor  to  sell  on  breach  of  the  condition,  and  a  statute, 
subsequently  passed  by  the  State,  gave  the  mortgagor 
twelve  months  to  redeem  the  property  and  prohibited  a 
sale  at  less  than  two  thirds  of  its  value.  This  law  was  held 
void,  as  impairing  the  obligation  of  a  contract,  since  a  de- 
nial of  a  remedy  may  constitute  such  an  impairment. ^^^ 
Story  1^^  considered  this  case  an  important  one  and  read 
Taney's  opinion  "with  the  highest  satisfaction,"  regard- 
ing it  as  "drawn  up  with  great  ability"  and  as  "entirely 

102  Williams  v.  Ash  1  Howard  1. 

lo^Bronson  v.  Kinzie  1  Howard  311. 

1°^  Subsequent  mortgages  were  subject  to  the  laws. 

10^  Tyler,  p.  289. 


224  ROGER  BROOKE  TANEY 

conclusive."  In  writing  to  Taney  concerning  the  case, 
Story  expressed  the  hope  that  the  "opinion  was  unani- 
mous" and  added  that  "These  are  times  in  which  the 
Court  is  called  upon  to  support  every  sound  constitu- 
tional doctrine,  in  support  of  the  rights  of  property  and 
of  creditors."io6 

In  1844,  Taney  delivered  several  rather  important 
opinions  for  the  Supreme  Court.  One  of  these  opinions 
held  that  a  Pennsylvania  act  imposing  toll  on  carriages 
transporting  the  United  States  mail  over  the  Cumberland 
Road,^"^  violated  the  compact  between  the  United 
States  and  Pennsylvania  made  by  the  Act  of  1835,  by 
which  the  State  took  possession  of  the  road.  The  con- 
stitutional power  of  the  Federal  Government  to  con- 
struct such  a  road  and  the  rights  of  the  United  States  in 
the  road,  prior  to  the  compact,  were  not  involved  in 
in  the  case.  The  State  had  a  right  to  enter  into  a  com- 
pact with  the  Nation  to  maintain  the  road.  The  con- 
tract was  not  one  between  individuals,  but  "between 
two  governments,  deeply  concerned  in  the  welfare  of 
each  other;  whose  dearest  interests  and  happiness  are 
closely  and  inseparably  bound  up  together  and  where  an 
injury  to  one  cannot  fail  to  be  felt  by  the  other."  To 
tax  the  mails  was  to  tax  all  of  real  value  of  federal 

^^  The  other  cases  reported  in  1  Howard  are  unimportant :  viz.  (l)  Smith  v. 
Coudry  1  Howard  28  (collision);  (2)  McKnight  v. Taylor  1  Howard  161  (Trust 
created  for  the  payment  of  creditors — the  right  began  to  sue  in  April  1818  but 
no  steps  were  taken  until  August  1837 — equity  will  not  intervene  after  such  an 
unaccounted  for  delay);  (3)  Jewell's  Lessee  v.  Jewell  1  Howard  219  (marriage 
in  Georgia  or  South  Carolina,  per  verba  in  praesente,  Court  equally  divided); 
(4)  Bank  of  Metropolis  v.  N.  E.  Bank  1  Howard  234  (negotiable  paper) ;  (5)  Nelson 
V.  Garland  1  Howard  265  (Procedure  under  bankruptcy  act);  (6)  Taylor  v.  Savage 
1  Howard  282  (On  removal  of  executor  and  appointment  of  an  administrator 
de  bonis  non) ;  (7)  Minor  v.  Tillotson,  1  Howard  287  (writ  of  error).  In  2  Howard, 
for  some  unascertained  reason,  I  find  no  opinion  by  Taney. 

107  Searight  v.  Stokes  3  Howard  151. 


ROGER  BROOKE  TANEY  225 

property  over  the  road,  except  for  occasional  military 
use.  The  United  States  had,  "unquestionably,  a  prop- 
erty in  the  mails.  They  are  not  mere  common  carriers, 
but  a  government,  performing  a  high  official  duty  in 
holding  and  guarding  its  own  property,  as  well  as  that 
of  its  citizens  committed  to  its  case."  The  United 
States,  however,  could  not  claim  exemption  for  more 
carriages  than  those  necessary  for  the  "safe  and  speedy 
and  convenient  conveyance  of  the  mail,"  and  other 
property  or  persons  in  the  same  vehicle  with  the  mail 
were  held  not  to  be  exempt  from  toll. 

In  another  case,  in  which  an  act  of  Ohio  was  con- 
sidered^^^  imposing  toll  on  passengers  on  the  Cumberland 
Road  travelling  in  mail  coaches,  Taney  held  that  the 
toll  imposed  on  the  United  States  part  of  the  burden  of 
support  of  the  road,  contrary  to  the  contract  between 
Ohio  and  the  United  States,  especially  since  passengers 
in  other  vehicles  were  allowed  to  go  free. 

In  Kendall  v.  Stokes^^^^  the  Court  held  that  a  public 
officer  was  not  liable  in  an  action  for  an  honest  mistake, 
made  in  a  matter  where  he  was  obliged  to  exercise  his 
judgment,  even  though  an  individual  may  suffer  through 
this  mistake.  An  application  by  a  private  person  for 
a  mandamus  proceeds  on  the  ground  that  he  has  no 
other  adequate  remedy  and,  after  the  mandamus  has 
been  awarded,  an  applicant  cannot  have  an  action  in 
the  case  for  the  same  cause,  though  he  may  have  one 
for  a  disobedience  of  the  mandamus.  After  an  award 
and  the  receipt  of  the  money  awarded,  an  action  for  the 
original  cause  cannot  be  maintained  on  the  ground  that 
the  claimant  did  not  claim,  or  prove  before  the  referee, 
all  the  damages  sustained.     If  the  Postmaster  General 

108  Neil  V.  Ohio  3  Howard  720. 

109  3  Howard  87. 


226  ROGER  BROOKE  TANEY 

wrongfully  refuses  to  give  credit  to  a  contractor  and  the 
latter  should  be  entitled  to  an  action  for  damages,  he 
cannot  recover  special  damages  (beyond  interest)  for 
the  detention  of  the  money.  Kendall  acted  wrongly, 
but  in  good  faith,  in  witholding  payment  for  a  claim 
upon  which  his  predecessor  had  acted  finally. 

Another  case  involved  Maryland's  subscription  of  a 
million  dollars  to  the  Baltimore  and  Ohio  Railroad, 
provided  that,  if  the  road  should  not  pass  through 
certain  towns  in  Washington  County,  the  Company 
should  forfeit  the  subscription  to  the  State  to  be  used 
for  Washington  County. ^^^  Biddle  remarks^^i  that  the 
"reasoning  of  the  Chief  Justice  in  this  case  is  marked 
by  breadth  of  view  and  intelligent  discrimination  and  the 
application  of  sound  principles  of  law  to  the  case."  The 
Railroad  had  assented  to  the  above  named  condition,  as 
a  part  of  its  charter.  The  Court  held  that  the  law 
inflicted  a  penalty,  that  nothing  was  due  to  the  company 
by  contract,  and  that  the  State  could  release  and  had 
released  the  penalty,  by  a  subsequent  Act.  The  Act  of 
1835  had  been  repealed  in  1840,  and  the  language  of  the 
former  act  was  not  that  of  a  contract,  but  was  mandatory 
and  in  the  exercise  of  legislative  power.  In  the  course 
of  the  opinion,  Taney  said  that  public  corporations  were 
created  for  purposes  of  government  and  that  counties 
were  only  certain  portions  of  territory  into  which  the 
State  is  divided  for  the  "more  convenient  exercise  of  the 
powers  of  government. ^'^^^ 

A  number  of  tariff  decisions  were  made  by  Taney  at 
this  term  of  Court,  interpreting  the  act  of  1842.^1^ 

"0  Maryland  v.  B  &  O.  R.  R.  3  Howard  534. 

"1  Const.  Hist.,  p.  159. 

"2  Stimpson  v.  Westchester  R.  R.  C.  another  railroad  case,  involving  a  writ 
of  certiorari,  3  Howard  553. 

"3(1)  Aldridge  v.  Williams,  3  Howard  1  (Appraisal  of  exports) ;  ( 2 )  Curtis  v.  Mar- 
tin, 3  Howard  107  (Duty  on  cotton  bagging);  (3)  Swartwout  v.  Gihon  3  Howard 


ROGER  BROOKE  TANEY  227 

In  1845,  Taney's  only  important  opinion  was  one 
concerning  the  country  occupied  by  Indian  tribes  and 
not  included  within  the  boundaries  of  any  State. ^^^  As 
to  such  territory,  the  Court  held  that  Congress  had 
power  to  enact  a  law  to  punish  offences  committed 
either  by  whites  or  Indians.  A  white  citizen  of  the 
United  States,  who  had  been  adopted  and  domiciled 
by  the  Cherokees,  was  not  considered  to  be  an  Indian; 
but  could  be  tried  for  murder  in  the  United  States 
Court  for  the  District  of  Arkansas. ^^^ 

''The  native  tribes,"  in  Taney's  words,i^®  "who  were 
found  on  this  continent  at  the  time  of  its  discovery, 
have  never  been  acknowledged  or  treated  as  independent 
nations  by  the  European  governments,  nor  regarded  as 
the  owners  of  the  territories  they  respectively  occupied. 
On  the  contrary,  the  whole  continent  was  divided  and 
parcelled  out  and  granted  by  the  governments  of  Europe, 
as  if  it  had  been  vacant  and  unoccupied  land  and  the 
Indians'  territory  held  to  be  and  treated  as  subject 
to  their   dominion    and  control."     The  United  States 

110  (a  verbal  protest  against  an  illegal  exaction  of  duties  is  sufficient).  Minor 
miscellaneous  opinions  were  in  the  cases  of:  (1)  Savage's  Assignees  v.  Best,  3 
Howard  111  (In  Kentucky,  delivery  of  a  fieri  facias  to  a  sheriff  creates  a  lien  on 
debtor's  lands  as  valid  as  though  a  levy  had  been  made  on  them);  (2)  Nugent 
V.  Boyd,  3  Howard  420  (Bankrupt  law,  dissent);  (3)  U.  S.  v.  Hodge,  3  Howard 
534  (procedure) ;  (4)  Brown  v.  Hunt,  3  Howard  650  (land  patent,  dissent  without 
opinion);  (5)  Wilson  v.  Smith,  3  Howard  763  (Collection  of  bill);  (6)  Winston  v. 
U.  S.,  3  Howard  771  (Motion  to  dismiss  suit);  (7)  Ross  v.  Prentiss,  3  Howard  771 
(Limit  of  jurisdiction);  (8)  U.  S.  v.  King,  3  Howard  773  (Spanish  land  grant  in 
La.),  Biddle  (Consti.  Hist.  p.  161)  writes  that  the  decision  in  the  last  case 
(The  same  case  came  up  again  in  7  Howard  d>33)t  "although  doubtless  bearing 
hard  occasionally  upon  innocent  purchasers  for  value,  contains  the  only  true 
solution  of  the  difficulties  surrounding  such  grants." 

114  U.  S.  V.  Rogers  4  Howard  567. 

"5  Biddle,  Const.  Hist.  p.  159,  calls  this  opinion  a  "brief,  lucid,  and  forcible 
discussion"  of  the  rights  of  Indian  tribes. 

"8  page  572. 


228  ROGER  BROOKE  TANEY 

Government  has  exercised  its  power  over  them  "in  the 
spirit  of  humanity  and  justice.  But  had  it  been  other- 
wise, it  is  a  question  for  the  lawmaking  and  political 
department  of  the  government  and  not  for  the  judi- 
cial  It  is  our  duty  to  expound  and  execute 

the  law  as  we  find  it/*  In  such  firm  language,  does 
Taney  express  the  doctrine  of  the  separation  of  powers.^^^ 

The  great  case  of  Rhode  Island  v.  Massachusetts 
came  up  for  final  decision  at  this  time.  Taney  had 
dissented  in  the  preliminary  decision^^^  but  now"^ 
he  concurred  in  holding  that  Massachusetts  won  the 
dispute.120 

Taney's  official  life  was  not  altogether  confined  to 
the  Bench.  On  February  24,  1845,  he  wrote  to  his 
wifei2i  that 

The  Court  in  a  body,  with  Marshal,  Clerk  and  Reporter,  waited 
on  President  Polk,  on  last  Wednesday  morning,  in  due  form.  We 
were,  as  you  may  suppose  (that  is,  the  President  elect  and  myself) 

"^  Minor  opinions  at  this  term  are  ( 1 )  Tombigbee  R.  R.  v.  Kneeland,  4  Howard 
17  (affirmsBankof  Augusta  v.Earle);  (2)  Spalding  v.  N.  Y.,4Howard21,  (Bank- 
ruptcy law),  (3)  Maney  v.  Porter,  4  Howard  55  (Jurisdiction;  (4)  Agricultural  Bank 
of  Mississippi  v.  Rice  4  Howard  225  (Married  woman's  deed) ;  (5)  Aspden  v. 
Nixon,  4  Howard  467  (Dissent  without  opinion.  Effect  of  Chancery  Decree) ; 
(6)  Barry  v.  Mercein,  4  Howard  574  (Procedure).  In  a  case  from  Florida,  he 
delivered  an  opinion  to  the  effect  that  the  control  of  the  records  of  the  Terri- 
torial Court  of  Appeals  of  that  State  belongs  to  the  United  States,  and 
not  to  the  State,  and  that  the  Supreme  Court  would  not  issue  a  writ  of 
error  to  a  court  no  longer  in  existence.  Hunt  v.  Palao,  4  Howard  589.  In 
Gwinn  v.  HoUiday,  4  Howard  1,  the  Court  held  that,  if  an  execution  creditor 
authorized  a  Deputy  Marshal  to  receive  in  pa3anent  of  a  debt  other  currency 
than  gold  or  silver,  the  latter  acts  as  agent  of  the  creditor  and  not  as  deputy 
marshal,  so  that  the  marshal  is  not  responsible  for  his  acts. 

"8  In  12  Peters. 

"9  4  Howard  591. 

^20  He  filed  a  separate  opinion,  but  said  nothing  as  to  the  merits  of  the  case 
and  was  not  even  present  at  the  elaborate  arguments  upon  the  evidence. 

121  Tyler,  p.  472. 


ROGER  BROOKE  TANEY  229 

glad  to  meet  here  again  under  such  circumstances,  and  talked  about 
old  times,  as  much  as  we  could  in  the  five  minutes  we  were  together. 
I  have  not  yet  been  able  to  wait  on  Mrs.  Polk;  but  must  do  so 
before  I  leave  Washington. 

In  the  evening,  we  went  to  President  Tyler's.  There  must 
have  been,  I  think,  a  thousand  people  there — well-dressed,  well- 
behaved  people,  for  none  others  were  there.  You  know  the  Presi- 
dent and  I  are  good  friends,  and  he  and  Mrs.  President  received 
me  with  great  kindness;  and  I  met  there  more  old  friends,  and 
spent  a  more  pleasant  evening  than  I  expected;  except  only  that 
I  was  greatly  oppressed,  as  I  always  am  on  such  occasions,  by 

the  crowded  state  of  the  rooms President  Tyler's 

Cabinet  were  all  there;  but  I  suppose  you  have  heard  that  they 
are  all  to  go  out,  as  soon  as  Mr.  Polk  comes  in.  But  we  do  not 
yet  know  who  will  come  in;  and  I  am  too  busy  in  Court  to  make 
many  inquiries. 

During  these  ten  years,  many  changes  had  taken 
place  in  the  membership  of  the  Court.  Barbour  had 
come  upon  the  Bench  about  the  same  time  as  Taney, 
but  had  died  suddenly  in  1841  and  had  been  succeeded 
by  Daniel.  Catron  and  McKinley  had  been  appointed 
in  1837,  when  the  number  of  judges  was  increased  to 
nine. 

Story  was  still  dissatisfied  with  the  principles  upon 
which  the  Court's  decisions  were  being  based  and  in  a 
tone  of  profound  melancholy  wrote  a  friend,  the  Hon. 
Ezekiel  Bacon,  in  April,  1845. 

I  have  been  long  convinced  that  the  doctrines  and  opinions  of 
the  "Old  Court"  were  daily  losing  ground,  and  especially  those  on 
great  constitutional  questions.  New  men  and  new  opinions  have 
succeeded.  The  doctrines  of  the  Constitution,  so  vital  to  the 
country,  which  in  former  times  received  the  support  of  the  whole 
Court,  no  longer  maintain  their  ascendancy.  I  am  the  last 
member  now  living  of  the  old  Court  and  I  cannot  consent  to  re- 
main, where  I  can  no  longer  hope  to  see  those  doctrines  recognised 


230  ROGER  BROOKE  TANEY 

and  enforced.  For  the  future,  I  must  be  in  a  dead  minority  of 
the  Court,  with  the  painful  alternative  of  either  expressing  an 
open  dissent  from  the  opinions  of  the  Court,  or,  by  silence,  seeming 
to  acquiesce  in  them.^^ 

In  this  state  of  affairs,  Story  had  decided  to  resign  his 
seat  on  the  Bench  and  devote  himself  entirely  to  his 
law  professorship  in  Harvard  University,  when  his 
death  came,  on  September  10,  1845. 

His  relationship  to  Taney  had  always  been  one  of 
**the  most  intimate  friendship."  They  were  frequent 
correspondents,  both  upon  official  and  personal  matters, 
and  this  friendship  extended  on  the  part  of  Story  to 
Taney's  family  also.  He  never  passed  through  Balti- 
more, without  paying  his  respects  to  Mrs.  Taney, 
either  in  person,  or  by  a  note  expressing  his  regret  that 
he  could  not  call.  He  condoled  with  Taney  and  his 
wife  over  the  death  of  Francis  Scott  Key,  which  loss  to 
the  Chief  Justice  and  his  wife  was  "irreparable  and  to 
the  public,  in  the  truest  sense  of  the  word,  a  deep 
-calamity."  He  wrote  Taney  of  his  hopes  to  take  a 
journey  to  England  and  of  his  health.  He  fully  appre- 
«ciated  Taney's  ability  and  learning. ^^s 

Shortly  after  Story's  death,  Taney  wrote  Mr.  Peters, 
the  Court  Reporter,  thus: 

What  a  loss  the  Court  has  sustained  in  the  death  of  Judge 
Story.  It  is  irreparable,  utterly  irreparable  in  this  generation; 
for  there  is  nobody  equal  to  him.  You  who  have  seen  me  sitting 
there  for  so  many  years  between  Story  and  Thompson  will  readily 
understand  how  deeply  I  feel  the  loss  of  the  survivor  of  them, 
especially  so  soon  after  the  death  of  the  other. 

122  Tyler,  p.  285. 

123  Tyler,  p.  288. 


ROGER  BROOKE  TANEY  231 

At  the  opening  of  the  succeeding  term  of  the  Supreme 
Court  in  the  memorial  proceedings,  Taney  said: 

It  is  difficult  for  me  to  ^^^  express  how  deeply  the  Court  feels  the 
death  of  Mr.  Justice  Story.  He  held  a  seat  on  this  Bench  for  so 
many  years  and  was  so  eminently  distinguished  for  his  great 
learning  and  ability,  that  his  name  had  become  habitually  asso- 
ciated with  the  Supreme  Court,  not  only  in  the  mind  of  those 
more  immediately  connected  with  the  administration  of  justice; 
but  in  that  of  the  public  generally  throughout  the  Union.  He 
had,  indeed,  all  the  qualities  of  a  great  judge,  and  we  are  fully 
sensible  that  his  labors  and  his  name  have  contributed  largely  to 
inspire  confidence  in  the  opinions  of  this  Court  and  to  give  weight 
and  authority  to  its  decisions.  His  legal  works  had  made  him 
known  wherever  juridical  knowledge  is  esteemed  and  cultivated 
.  .  .  .  but  it  is  here  on  this  Bench,  that  his  real  worth 
was  best  understood  and  it  is  here  that  his  loss  is  most  severely 
and  painfully  felt.  For  we  have  not  only  known  him  as  a  learned 
and  able  associate  in  the  labors  of  the  Court,  but  he  was  endeared 
to  us  as  a  man,  by  his  kindness  of  heart,  his  frankness,  and  his 
high  and  pure  integrity. 

124  story's  Story  II  632,  633. 


CHAPTER   X 

Friendship  with  Jackson  and  Private  Life 
(1836-1846) 

On  March  17,  1836,  John  Forsyth,  Secretary  of  State, 
sent  Taney  his  commission  as  Chief  Justice  of  the 
United  States.^  This  official  intimation  of  the  confir- 
mation by  the  Senate  of  the  nomination  which  Jackson 
had  made,  was  not  the  first  knowledge  which  Taney 
had  of  the  matter,  for  "many"  of  his  *' friends  had 
written"  him  concerning  this  event,  and  their  letters 
had  been  received  by  him  on  the  sixteenth.  On  the 
seventeenth,  Taney  wrote  from  Annapolis  to  Jackson  a 
letter  which  I  dislike  to  quote,  for  it  is  a  very  regrettable 
one,  showing  narrowness,  vindictiveness,  and  rancor. 
He  told  the  President  that 

I  feel  that  the  first  letter  I  write  after  the  receipt  of  this  in- 
telligence should  be  addressed  to  you,  to  express  the  deep  sense  I 
shall  ever  retain  of  the  constant  kindness  with  which  you  have 
supported  me,  until  you  have  finally  placed  me  in  the  high  station 
which  I  now  fill  and  which  is  the  only  one  under  the  government 
that  I  ever  wished  to  attain. 

His  loyalty  to  Jackson  was  admirable  and  perfect,  and 
the  jurist  continued: 

There  are,  indeed,  circumstances  connected  with  my  appoint- 
ment, which  render  it  more  gratifying  than  it  would  have  been 
in  ordinary  times.  In  the  first  place,  I  owe  this  honor  to  you, 
to  whom  I  had  rather  owe  it  than  to  any  other  man  in  the  world, 
and  I  esteem  it  the  higher,  because  it  is  a  token  of  your  confidence 
in  me. 

1 13  Md.  Hist.  Mag.  166. 

232 


ROGER  BROOKE  TANEY  233 

In  the  second  place,  I  have  been  confirmed  by  the  strength  of 
my  friends,  and  go  into  the  office,  not  by  the  leave,  but  in  spite 
of  the  opposition  of  the  men  who  have  so  long  and  so  persever- 
ingly  sought  to  destroy  me,  and  I  am  glad  to  feel  that  I  do  not 
owe  my  confirmation  to  any  forbearance  on  their  part,  and  it  is, 
also,  not  a  little  pleasant  to  find  that  Mr.  Kendall,  with  whom  I 
have  passed  through  so  many  trying  scenes,  and  who  shared  with 
me  so  largely  the  vindictive  persecution  of  the  panic,  was,  in  the 
same  session  of  the  Senate  in  which  I  was  confirmed,  and  in  the 
same  hour,  placed  firmly  in  the  high  station  to  which  you  have 
called  him,  and  which  he  is  so  entirely  worthy  to  fill,  and  that  he  is 
no  longer  in  the  power  of  those  who  have  sought  and  still  seek 
to  make  him  one  of  the  victims  of  their  vengeance,  and  it  is  a 
still  further  gratification  to  see  that,  if  providence  spares  our  lives, 
it  will  be  the  lot  of  one  of  the  rejected  of  the  panic  Senate,  as  the 
highest  judicial  officer  of  the  country,  to  administer,  in  your 
presence  and  in  the  view  of  the  whole  nation,  the  oath  of  office 
to  another  rejected  of  the  same  Senate,  when  he  enters  into  the 
first  office  in  the  world,  and  to  which  it  is  now  obvious  that  an 
enlightened  and  virtuous  people  are  determined  to  elect  him.  The 
spectacle  will  be  a  lesson  which  neither  the  people  nor  politicians 
should  ever  forget.^ 

Taney's  political  connection  with  Jackson's  adminis- 
tration continued  until  its  very  end.  He  sent  a  paper,  on 
June  20,  with  the  request  that  Major  Donelson  acknowl- 
edge the  receipt  of  it,  as  Taney  had  not  entire  confidence 
in  the  Post  Office.  The  paper  was  written  in  Washington, 
and  was  a  draft  of  a  veto  message  of  a  bill  for  the  charter 
of  banks  in  the  District  of  Columbia,  for  which  Jackson 
had  asked  Taney.  Taney  endorsed  on  the  draft,  how- 
ever, "as  no  constitutional  question  is  involved,  and  the 
responsibility  properly  in  such  cases  as  this,  belongs  to 
Congress,  I  respectfully  advise  that  it  is  not,  under  pres- 

2  Amos  Kendall  had  been  appointed  Postmaster  General,  and  the  Senate 
had  formerly  rejected  the  nomination  of  Van  Buren  as  minister  to  England. 


234  ROGER  BROOKE  TANEY 

ent  circumstances,  a  case  fit  for  a  veto."  Taney  was 
about  to  take  a  steamboat  for  Delaware  at  6.00  a.m.  on 
the  morrow,  and  so  could  not  copy  the  document  fairly, 
but  sent  it  with  interlineations.  He  believed  the  position 
sound,  and  that  Jackson  was  right.  He  did  not  like  to 
see  Jackson  in  another  controversy,  but  added:  *'Men 
think  differently,  you  must  decide."  If  Taney  had 
more  time  given  him,  he  would  have  presented  his  views 
upon  other  subjects  which  Jackson  may  discuss,  if  the 
bill  to  deposit  the  surplus  revenue  with  the  States 
ever  come  to  him — such  subjects  as:  (1)  there  is  no 
surplus;  (2)  the  distinction  between  an  "accidental  and 
a  systematic  surplus"  which  had  already  been  made  in 
Jackson's  previous  messages,  especially  in  the  first 
veto  of  the  land  bill;  (3)  the  desire  to  have  a  surplus 
would  have  an  injurious  effect  upon  legislation,  which 
desire  had  already  caused  forts  to  fall  into  decay  before 
completion  and  had  crippled  the  navy  (these  proofs, 
arising  from  experience,  of  the  disadvantage  of  having  a 
surplus  to  distribute,  ought  to  convert  dissidents);  (4) 
the  consequences  which  follow  the  relation  of  creditor 
and  debtor  between  the  United  States  and  the  States, 
and  the  impossibility  of  requiring  a  repayment,  for  the 
people  in  the  States  should  not  be  taxed  to  pay  them- 
selves in  the  general  government;  (5)  the  wild  measures 
and  spirit  of  speculation  afloat  "would  be  encouraged 
by  the  division  of  public  money  and  the  struggles  to 
obtain  it  would  engender  corruption."  The  bill  was 
passed,  and  the  only  reason  that  its  effects  were  not 
fully  as  bad  as  Taney  feared,  was  that  the  troubled 
condition  of  financial  affairs  soon  put  an  end  to  the 
surplus.  A  week  later,  on  June  27,  when  Taney  had 
returned  to  Baltimore  from  holding  court  in  Delaware, 
he   wrote   again,    stating   that   the   argument   he   had 


ROGER  BROOKE  TANEY  235 

sent  was  grounded  altogether  on  the  position  that  the 
Senate  bill  ''proposed,  in  effect,  a  loan  to  the  States,  or 
an  investment  in  their  stocks,  and  not  a  deposite  of  the 
money  of  the  United  States  in  the  true  and  proper 
sense  of  that  word."  The  amendment  to  the  bill 
made  by  the  House  of  Representatives,  removed  that 
objection  and  made  the  States  depositories.  There 
was  no  constitutional  difficulty  in  the  bill,  but  it  was 
only  bad  policy.  Consequently,  Taney  repeated  his 
recommendation  that  the  responsibility  be  left  on 
Congress  and  no  veto  message  be  sent.  The  policy  of 
the  bill  appeared  to  Taney  "most  unfortunate  and  mis- 
taken;" for,  if  Congress  may  "raise  a  revenue  beyond 
the  wants  of  the  General  Government,  and  may  de- 
posite the  money,  where  they  please,  either  with  a 
state  or  a  corporation,  and  may  suffer  that  money  to 
remain  there  to  the  end  of  time,  while  they  are  raising 
more  to  add  to  it,  I  see  no  limitation  whatever  to  the 
powers  of  the  general  government By  con- 
tinuing to  collect  a  revenue,  which  they  admit  they 
cannot  employ  usefully  for  the  purposes  of  the  general 
government,  they  assert,  in  effect,  unlimited  power  of 
taxation."  "The  friends  of  a  strict  construction  of  the 
powers  of  the  general  government,"  Taney  continued, 
will  find  that  "they  have  placed  themselves  in  difficulty," 
and  cannot  get  money  back  from  the  States,  for  the 
impression  had  been  made  that  "it  is  never  to  be  re- 
called and  so  they  sanction  a  principle  opposed  to  their 
construction  of  the  Constitution."  "It  will  be  no 
easy  matter,"  in  the  writer's  opinion,  "to  set  limits  to 
the  powers  of  government,  which  may  raise  what  money 
it  pleases,  and  apply  it  indirectly  to  what  purposes  it 
pleases,  by  depositing  it  with  a  State,  or  a  corporation, 
or  an   individual,   with   the   understanding   that   it   is 


236  ROGER  BROOKE  TANEY 

never  to  be  recalled."  "Every  political  friend"  with 
whom  Taney  had  spoken,  regretted  the  bill,  yet  thought 
Jackson  was  right  in  "not  vetoing  it,  from  the  vast 
majorities  by  which  it  was  passed." 

Politics  in  Maryland  were  at  a  white  heat  in  1836. 
The  large  counties,  in  which  the  Democratic  party  was 
strong,  insisted  on  a  larger  representation  in  the  legisla- 
ture, and,  when  they  could  not  obtain  what  they  be- 
lieved should  have  been  granted  them  in  the  regular 
constitutional  way,  revolutionary  measures  were  dis- 
cussed.2  Taney  discountenanced  any  extra  constitu- 
tional steps,  and,  although  in  September,  Frank  P. 
Blair^  wrote  him  that  his  attitude  was  "causing  the 
opposition  to  make  great  headway  against  our  friends 
in  Montgomery  County,"  he  declined  to  change  his 
position.^ 

On  October  15,  1836,  Jackson  wrote  Taney  con- 
cerning his  farewell  address.  When  would  be  the  most 
opportune  time  of  presenting  it?  At  the  beginning  or 
the  end  of  the  Congressional  Session?  What  topics 
should  be  introduced?  and  "what  range  should  it 
take?"  for  example,  ought  not  "Our  glorious  Union" 
be  treated  as  "permanently  important,"  the  dangerous 
power  of  the  United  States  Bank  and  "privileged 
monopohes  generally"  be  discussed,  and  the  "gradual 
consuming  corruption"  in  legislatures,  through  the 
"paper    system,"    be    condemned? 

It  was  not  merely  the  desire  to  vindicate  a  friend  and 
adherent  that  had  led  Jackson  to  appoint  Taney  Chief 

3  Tyler,  p.  246. 

4 13  Md.  Hist.  Mag.  166. 

^  For  full  discussion  of  the  political  situation  in  Maryland  at  this  time,  see 
Steiner's  "Electoral  College  for  the  Senate  of  Maryland  and  the  Nineteenth 
Van  Buren  Electors"  in  American  Historical  Association  Proceedings  for 
1895.  pp.  129-167. 


ROGER  BROOKE  TANEY  237 

Justice.  He  had  learned  to  lean  upon  the  Marylander's 
advice  and  opinion.  The  popular  judgment^  might  have 
designated  Story  to  succeed  to  Marshall's  place,  through 
his  ability,  worth,  and  reputation,  and  his  early  cham- 
pionship of  the  Republican  party  in  New  England,  but 
Jackson  believed  too  thoroughly  in  Taney  to  give  the 
great  position  to  any  other  man.  Taney  replied  to 
Jackson,  on  October  27,  that  he  would  have  his  sugges- 
tions for  a  farewell  address  ready  by  January  1.  He 
was  pleased  to  see  the  success  of  Jackson's  measures 
and  believed  that  the  Treasury  order,  requiring  that  the 
payments  for  public  lands  be  made  in  specie,  had 
saved  the  West  from  bankruptcy  and  ruin.  The  order 
had  been  a  benefit  to  the  Atlantic  States  also,  making 
the  banks  adopt  a  more  cautious  policy.  That  pressure, 
concerning  which  complaint  was  made,  would  have 
been  far  more  severe  without  that  order,  and,  in  any 
case,  the  disturbed  situation  of  the  money  market  in 
England  would  have  been  felt  in  the  United  States. 
"The  main  cause  of  the  evil  here,"  in  Taney's  opinion, 
"is  unquestionably,  the  sudden  and  exorbitant  increase 
of  paper  currency,"  through  the  "immense  increase  of 
its  issues  by  the  Bank  of  the  United  States  in  the  last 
months  of  its  existence."  This  increase  created  a 
"craze  for  wild  and  mad  speculation."  The  Bank 
tried  to  produce  trouble,  and  influence  the  Presidential 
election,  and  had  "not  abandoned  its  designs  to  obtain 
control  of  the  general  government."  The  deposit 
bill  also  caused  trouble,  for  "the  greater  part  of  the 
surplus  revenue  had  been  loaned  merchants  in  commer- 
cial cities  and  the  mere  transfer  of  it  from  the  banks 
which  had  loaned  it  to  others,"  for  a  time  "withdrew  it 
from    commercial    operations."     The    newspapers,    in- 

8  Cf.  Ill  Parton's  Jackson  559. 


238  ROGER  BROOKE  TANEY 

fluenced  by  the  merchants,  were  most  clamorous  for 
the  measure,  and  now  reap  the  fruits."  It  was  a 
repetition  of  their  folly  in  1833  and  1834.  Then 
they  tried  to  throw  the  blame  for  financial  disturbances, 
now  they  threw  the  blame  on  the  Treasury  land  circular. 
There  was  no  foundation  for  either  charge.  The  mer- 
chants, as  a  class,  were  obviously  ''led  astray  by  political 
leaders  more  easily  than  any  other  class  of  citizens." 
"The  currency,"  he  concluded,  will  be  "always  liable 
to  these  ruinous  fluctuations,  while  it  continues  to  be 
of  paper."  No  notes  should  be  issued  under  "twenty 
dollars,  and  fifty  would  be  better."  The  States  will 
not  prevent  the  issue  of  smaller  notes,  so  Congress  must 
do  so. 

In  November,  Taney  wrote  Jackson  twice,  in  reference 
to  Federal  appointments  in  Baltimore,  for  he  continued 
to  be  the  administration's  political  adviser  in  these 
matters.  The  earlier  of  these  letters,  written  on  the 
18th,  has  not  been  found,  but  the  second  letter,  written 
a  day  later,  states  that  further  inquiry  made  Taney 
feel  that  he  was  correct  in  the  advice  contained  in  the 
former  epistle.  The  appointment,  as  collector  of  the 
port  of  Baltimore,  of  either  Frick^  or  White  would  be  a 
good  one,  and  as  "well  received  as  could  be  expected, 
where  so  many  will  be  disappointed,  let  who  will 
succeed."  Mr.  Frick  had  been  an  "active  politician 
for  many  years,  and  a  man  of  high  standing.  He  was  a 
Jacksonian  presidential  elector  in  1832,  and  a  candi- 
date for  elector  in  1836.     He  had 

mixed  much  with  the  people,  especially  with  those  who  take  an 
active  part  in  political  concerns,  is  a  popular  man,  and,  I  think 
his  appointment  would  be  more  generally  acceptable  in  the  first 

'  Frick  was  doubtless  William  Frick,  a  lawyer,  White  was  John  White. 


ROGER  BROOKE  TANEY  239 

instance  than  that  of  Mr.  White,  whose  situation  as  a  cashier  of 
the  Branch  Bank  has  precluded  him  from  mixing  much  with  the 
people,  or  taking  an  active  part  in  political  contests.  But  the 
high  character  of  Mr.  White,  his  undoubted  qualifications  for  the 
office,  indeed,  I  may  say,  his  peculiar  qualifications,  would,  I 
have  no  doubt,  make  his  appointment,  after  a  little  time,  per- 
fectly acceptable   to  the  great  body  of  our  friends 

The  intimate  knowledge  of  the  commercial  community,  which  he 
must  have  acquired  as  cashier,  would  be  exceedingly  valuable  in 
a  collector,  who  is  constantly  called  on  to  decide  on  the  sufficiency 
of  the  suretys  offered  on  duty  bonds.  He  is  moreover,  greatly 
esteemed  and  respected  by  this  community,  and  no  one  can 
doubt  his  integrity,  his  firmness,  or  his  entire  fitness  for  his  office. 

The  aged  General  Samuel  Smith  had  been  suggested 
for  the  collectorship.  Taney  thought  that  this  "  appoint- 
ment would  not  be  complained  of,"  on  account  "of  his 
long  public  services,"  Yet  it  "would  not  be  acceptable 
to  our  friends  generally."  Smith  was  one  of  "a  small 
number"  in  Baltimore  who  favored  McLane  as  Jack- 
son's successor.  He  was  so  opposed  to  Van  Buren 
that  he  did  not  make  up  his  mind  to  vote  for  him, 
until  the  preceding  summer,  and  was  "never  regarded  as 
cordial  in  his  support."  Furthermore,  Smith  was 
Mayor  of  the  City,  and,  if  that  ofifice  should  be  vacated, 
the  opposition  might  carry  the  election  for  a  successor, 
since  "matters  have  been  sadly  mismanaged  here, 
and  the  party  is  not  united  as  it  should  be."  The 
great  body  of  Jacksonians  "are  not  willing  that  General 
Smith  should  be  appointed,  and  have  not  confidence  in 
him,"  yet  none  of  Jackson's  "real  friends  would  com- 
plain," in  the  event  of  Smith's  appointment. 

Carr^  had  also  been  suggested,  but  Taney  felt  there 
were  "strong  objections"  to  him.     He  was  honest,  but 

^  Carr  has  not  been  identified. 
John  K.  Law  was  the  Collector  at  that  time. 


240  ROGER  BROOKE  TANEY 

*' manages  his  own  money  concerns  very  badly,"  and 
does  not,  by  any  means,  stand  high  for  prudence,  or 
punctuaHty,  in  money  affairs.  The  handling  of  public 
money  might  benefit  him,  besides,  it  is  understood  that, 
if  appointed  collector,  he  has  agreed  to  retain  in  office 
the  son  of  the  late  collector — a  ''political  opponent" 
and,  therefore,  he  is  recommended  by  merchants  who 
are  "our  bitter  opponents."  The  son  referred  to  is  a 
"very  worthy  man  and  an  excellent  officer."  Taney 
had  "no  desire  to  see  him  removed,"  but  thought  that 
the  collector  ought  to  take  his  office  unhampered  by 
pledges. 

Lyde  Goodwin^  was  a  fifth  candidate,  but  his  "neces- 
sities and  indiscretions  in  money  matters  seem  to  form, 
in  the  opinion  of  our  friends  here,  insuperable  objections" 
to  him.  He  "would  not  have  the  confidence  of  the 
public."  Wilmer,^^  sixth  candidate,  was  unfit.  "The 
Convention"  had  presented  the  name  of  a  seventh  man, 
Samuel  Harker.^i  It  would  be  an  "extreme  indiscre- 
tion," in  Taney's  opinion,  to  name  him,  for  "you  can 
hardly  imagine  a  man  more  unfit  and  more  unworthy 
of  such  an  office."  In  fine,  Taney  advised  delay  in 
making  the  appointment. 

In  the  beginning  of  December,  Jackson  sent  Taney 
a  copy  of  his  annual  message,  together  with  a  "kind 
note, "^2  asking  an  opinion  upon  the  message  and  Taney's 
views  upon  the  farewell  address,  which  note  Taney 
acknowledged  on  the  8th.  Taney  found  that  the 
message  was  making  a  "strong  impression"  in  Balti- 
more, and  he  trusted  the  impression  would  be  a  durable 

^  Lyde  Goodwin  is  given  in  the  "City  Directory"  for  1835  without  occupation. 

1°  Wilmer  was  probably  L.  A.  Wilmer,  painter. 

^^  Samuel  Harker  was  editor  of  the  "Baltimore  Republican." 

12  4  Md.  Hist.  Mag.  304. 


ROGER  BROOKE  TANEY  241 

one.  The  arguments  on  the  "  deposite  law  "  and  on  the 
currency  were  found  to  be  ''clear  and  decisive."  The 
reference  to  the  first  United  States  Bank  was  "one  of 
those  historical  recollections  that  should  often  be 
recalled."  Taney  also  thought  that  the  ''wisdom  and 
foresight  of  your  Treasury  order  as  to  specie  payments 
for  the  public  lands  is  becoming  every  day  more  mani- 
fest." Without  it,  "pressure  would  have  been  greater 
and  there  would  have  been  an  explosion  of  Western 
banks." 

The  Circuit  Court's  session  would  end  on  the  following 
Monday,  and  Taney  could  then  turn  his  thoughts  to 
Jackson's  farewell  address.  Taney  rejoiced  that  Benton 
was  pressing  fonvard  his  "expunging  resolution"  and 
that  Jackson's  health  was  better,  so  that  he  may  "wit- 
ness the  happiness  of  a  grateful  people." 

During  the  recess  of  the  Supreme  Court,  on  January 
27,  1837,  Taney  wrote  Jackson  an  acceptance  of  a 
dinner  invitation  to  the  White  House,  and  congratu- 
lated the  President  on  his  "proud  and  noble  triumph, 
in  which  an  indelible  and  enduring  mark  of  reproach, 
which  a  faction  endeavored  to  fix  upon  you,  has,  by 
the  command  of  millions  of  people,  been  stamped 
upon  their  own  foreheads."  This  grandiose  sentence 
referred  to  the  passage  of  Benton's  resolution  by  the 
Senate,  expunging  from  its  records  the  resolution 
condemming  Jackson  for  his  conduct  relative  to  the 
removal  of  the  deposits  from  the  Bank  of  the  United 
States. 

The  relations  between  the  President  and  the  Chief 
Justice  continued  to  be  very  intimate,  until  the  very 
end  of  the  administration.  The  idea  of  Jackson's  Fare- 
well Address,  probably,  took  its  inception  from  Washing- 
ton's.    The  paper  was  composed  by  Taney,  whose  ideas 


242  ROGER  BROOKE  TANEY 

were  identical  with  his  chief  s.^^     On  February  9,  Jackson 
wrote  a  curiously  formal  note  :^^ 

The  President  with  his  respects  to  Chief  Justice  Taney,  and 
being  informed  by  Mr.  Blair  that  the  Supreme  Court  will  adjourn 
on  Saturday  next,  The  President  requests  him  to  come  and  take 
a  room  with  him  during  his  stay.  The  President  will  have  the 
room  warmed  on  Saturday,  if  Mr.  Taney  will  be  here  on  that 
evening  to  occupy  it. 

After  retiring  from  the  Presidency,  Jackson  lived 
for  eight  years  at  his  plantation,  the  Hermitage,  near 
Nashville.  Once  or  twice  every  year,  Taney  wrote  him 
long  letters,  to  which  most  of  the  replies  have  not 
been  found  and  two  of  Taney's  letters  seem  to  have  been 
destroyed.  The  Chief  Justice  was  no  traveller,  and  I 
find  no  record  that  he  ever  went  anywhere,  except  to 
hold  court,  or  to  spend  a  summer  at  a  Virginia  watering 
place.  But  he  always  had  it  in  mind  to  visit  Jackson, 
and  it  is  pathetic  to  see  how,  in  one  letter  after  another, 
he  states  that  he  has  been  obliged  to  defer  the  consumma- 
tion of  this  desire.  The  letters  also  show  clearly  that 
the  intimacy  was  not  merely  between  the  heads  of  the 
two  households,  but  that  the  ladies  and  children  partook 
of  the  friendship. 

After  Van  Buren's  inauguration,  the  first  of  the 
long  series  at  which  Taney  gave  the  oath  to  the  Chief 
Magistrate,  Jackson  stopped  to  visit  Taney  in  Balti- 
more, on  his  way  to  Tennessee. ^^ 

Shortly  after  the  administration  of  Van  Buren  began, 
Taney  wrote  him  on  April  1,  1837,  from  Baltimore^^  and 

13  Tyler,  p.  409 
1^  13  Md.  Hist.  Mag.  160. 
« III  Parton's  Jackson,  p.  629. 

"  8  Md.  Hist.  Mag.  317.  Van  Buren  had  written  Taney  about  an  appoint- 
ment to  Federal  office  and  Taney  gives  his  opinion  of Murray. 


ROGER  BROOKE  TANEY  243 

expressed  pleasure  that  he  had  left  "the  special  treasury 
untouched,"  for  any  change  would  have  produced 
''an  expansion  of  the  paper  currency."  On  April  30 
a  second  letter  was  written  to  Van  Buren,  asking  that 
he  write  prominent  Baltimoreans  to  prevent  them  from 
becoming  discontented;  a  third  letter,  dated  July  20, 
answered  Van  Buren 's  questions  in  regard  to  the  proper 
measures  which  should  be  taken  to  meet  the  financial 
situation  and  to  secure  the  resumption  of  specie  pay- 
ments by  the  banks.  Taney  disapproved  of  keeping  the 
public  money  in  the  Sub-treasury,  and  thought  that 
*'the  banks  never  will  resume  specie  payments,"  until 
the  merchants  were  compelled  to  pay  their  bonds  on 
goods  imported  from  foreign  countries.  Taney  then 
referred  to  the  attack  made  upon  him  by  Clay,  on 
account  of  his  being  a  stockholder  in  the  Union  Bank, 
and  apprised  Van  Buren  that  'Td  not  now  hold  a 
single  share  of  stock  in  any  bank,  nor  do  I  owe  any 
Bank  a  single  dollar." 

The  first  of  these  letters  by  Taney  to  Jackson  was 
written  in  Baltimore  on  July  3,  1837.  Taney  had 
rented  a  ''pretty  little  place"  three  miles  from  Balti- 
more for  his  family  for  the  summer.  All  the  family 
had  been  ill  during  the  preceding  winter.  He  already 
meditated  writing  a  never-to-be- written  "history  of  the 
panic  year,"  but  must  visit  Jackon  before  beginning 
work  upon  it.  Like  King  Charles's  head  in  the  novel, 
the  Bank  of  the  United  States,  that  prime  villain, 
figures  largely  in  the  epistle.  Since  that  institution  had 
secured  a  Pennsylvania  charter,  Taney  was  certain  that 
it  was  "busy  in  preparing  for  the  overthrow  of  the 
State  Banks,  and  operating  with  all  its  power  to  produce 
disorder  and  confusion  in  the  currency."  He  felt 
sure  that  the  "Bank  is  the  concentrated  power  of  the 


244  ROGER  BROOKE  TANEY 

whole  class  of  the  moneyed  aristocracy,  who  have  so 
long  struggled  to  get  possession  of  the  government," 
and  he  was  also  sure  that,  "without  the  aid  of  paper 
money,  the  moneyed  aristocracy  will  have  no  more  than 
their  fair  share  of  power."  A  hard  money  man,  Taney 
held  that  the  struggle  was  one  for  the  victory  of  paper, 
or  of  silver  and  gold.  He  believed  that  the  "great 
body  of  the  people  thought  but  little  on  the  currency," 
until  Jackson's  measure  called  their  attention  to  it. 
The  " discussipns  engendered"  thereby  will  show  the 
people  how  to  understand  the  question,  and,  "if  our 
friends  at  Washington"  stand  firm,  "the  intelligence  of 
the  people  will  carry  them  through.  But  we  have  a 
severe  contest,  and  money  will  be  poured  out  like  water 
to  accomplish  the  object  of  the  bank,"  which  had  re- 
gained ground  through  the  "worse  than  folly  of  our 
friends  in  Pennsylvania."  Taney  almost  wished  that 
he  was  again  with  Jackson  in  Washington,  to  fight  the 
battle  out  to  the  end.  "A  paper  currency,  in  any  form, 
or  in  any  shape,  should  be  resisted  with  inflexible  resolu- 
tion."    It  was  absurd   to   talk   about  a   "sound   and 

stable   paper   currency From   the   nature 

of  man,  such  currency  must  always  be  fluctuating  in 
value.  Nothing  will  do  as  a  measure  of  value,  but  a 
metallic  money,  which  has  of  itself  real  and  intrinsic 
value."  Formerly,  Taney  had  thought  that  banks 
might  be  permitted  to  issue  $20  notes,  but  experience 
and  observation  of  the  Bank  of  England,  had  convinced 
him  that  "there  will  be  no  safety  short  of  $50,  and  per- 
haps $100  would  be  better.  A  $50  note  is  seldom  asked 
for,  except  for  the  purpose  of  remittance  and  exchange." 
If  notes  were  limited  to  these  large  ones,  merchants 
would  "still  have  the  system  of  credits  with  each  other 
by  means  of  exchange,"  and  would  sometimes  speculate 


ROGER  BROOKE  TANEY  245 

and  fail,  but  "their  means  of  gambling  at  the  expense 
of  the  great  body  of  the  people,  would  be  taken  away" 
and  these  merchants  could  not  then,  "by  breaking  the 
banks,  where  they  must  always  exercise  absolute  control, 
debase  the  currency,  and,  by  that  means,  throw  their 
losses  upon  other  people."  The  "present  embarrass- 
ment in  government  revenues  never"  would  have 
occurred,  in  Taney's  opinion,  "if  our  friends  in  Con- 
gress, in  the  deposite  law,"  had  adhered  to  Jackson's 
rules,  when  "deposites"  were  first  removed  from  the 
Bank.  By  their  hurry  to  get  hold  of  the  surplus,  how- 
ever, they  took  away  the  control  of  the  government 
over  its  own  funds,  and  left  them  and  the  currency 
"at  the  mercy  of  men  who  had,  for  years,  been  en- 
deavoring to  destroy  both."  In  addition  to  the  provi- 
sions for  distribution  in  that  bill,  there  were  two  other 
fatal  ones:  (1)  their  prohibition  of  "any  deposite  in  a  bank 
of  more  than  one  fourth  of  its  capital,"  and  (2)  a  charge 
of  interest  "on  deposites."  When  Taney  left  the 
Treasury,  there  were  20  deposit  banks,  now  there  were 
90  and  this  "vast  and  ruinous  increase  was  forced'* 
on  the  President  by  that  clause.  "When  confined  to 
a  few  respectable  banks,  the  government  could  keep  a 
strict  supervision  over  them"  and  the  officers  of  such 
banks  were  "anxious  to  maintain  their  superior  rank 
in  the  public  estimation  and  to  preserve  the  confidence 
of  the  government."  When  Taney  wrote,  however,  the 
"revenue  of  the  nation"  had  become  mixed  up  with  the 
"general  rag  money  currency,  feeding  and  stimulating 
the  spirit  of  speculation  in  every  quarter.  The  circum- 
stance of  being  a  deposite  bank  ceased  to  be  an  honorary 
distinction." 

Furthermore,    as   soon    as    interest   was   asked,    the 
Secretary  of  the  Treasury  would  no  longer  require  the 


246  ROGER  BROOKE  TANEY 

banks  to  keep  the  deposites  in  specie,  whenever  he  saw- 
that  imprudence  "was  leading  them  astray."  They  had 
the  ''right  to  make  interest  by  lending  out  the  money. 
It  was,  truly,  no  longer  a  deposite,  nor  were  they 
deposite  banks.  It  was,  to  all  intents  and  purposes,  a 
loan  of  the  public  money."  The  Federal  Government 
collected  its  dues  in  ''hard  money,"  and  converted  "them 
into  paper,  and  very  bad  paper,  too,  by  lending  to 
banks."  The  money  was  put  to  "hazard  for  the 
miserable  gain  of  2  per  cent."  Jackson  had  agreed 
with  Taney,  when  the  bill  passed,  but  felt  the  objec- 
tions were  not  sufficient  for  him  to  veto  it.  "Money 
paid  to  the  government,  ought  never  to  be  connected 
in  any  degree  with  trade  or  exchange,  but  to  be  held  by 
the  agents  ....  as  a  sacred  deposite  and  never 
to  be  touched  except  for  the  purposes  for  which  the 
government  is  authorized  to  collect  it."^^ 

On  October  9,  1837,  Taney  wrote  Jackson  again  from 
Baltimore.  He  was  still  living,  "quite  retired,"  in 
Baltimore  County  with  his  family,  and  did  not  expect 
to  return  to  town  until  driven  thither  by  cold  weather, 
for  which  the  house  they  occupied  was  not  fitted.  He 
had  not  kept  in  touch  with  "our  leading  politicians," 
but  was  sincerely  sorry  to  find  discord  among  the  friends 
of  the  administration,  in  regard  to  the  measures  called 
for  by  the  "country's  exigencies."  He  was  pleased 
with  the  "manly  frankness  and  ability"  of  VanBuren's 
message  to  Congress,  as  well  as  with  the  "soundness  of 
its  principles."  If  Congress  had  followed  his  advice, 
there  would  have  been  no  more  trouble  with  the  Bank 
of  the  United  States.  Taney  regretted  that  Wood- 
bury, the  Secretary  of  the  Treasury,  had  recommended 

^^  He  blamed  Judge  White  strongly  for  the  enactment  of  the  bill  with  these 
defects. 


ROGER  BROOKE  TANEY  247 

the  issue  of  Treasury  notes  not  bearing  interest,  for  these 
would  be  a  ''paper  currency  upon  the  credit  of  the 
government,  and  every  paper  currency,  whether  issued 
by  the  government  or  by  corporations,  will  run  into 
excess  sooner  or  later."  Interest  bearing  notes  should 
be  issued,  which  will  not  circulate  as  currency.  Gold 
and  silver  could  be  raised  on  them.  "If  the  govern- 
ment owes  money  which  it  cannot,  at  this  moment,  pay, 
it  is  bound  in  honesty,  like  an  individual  in  the  same 
situation,  to  pay  interest  to  its  creditors  whom  it 
compels  to  wait."  Taney  did  not  believe  that  the 
banks  would  restore  specie  payments,  unless  the  im- 
porting merchants  were  compelled  to  pay  their  bonds, 
for  banks  are  "necessarily  under  the  control  of  the 
merchants."  Together  with  the  Bank  of  the  United 
States,  he  was  convinced,  that  these  merchants  com- 
pelled the  New  York  banks  to  suspend  specie  payments. 
Banks  elsewhere  cannot  resume  them,  until  New  York 
ones  do  so. 

An  important  election  had  recently  taken  place  in 
Mayland.  Taney  wrote:  "I,  of  course,  take  now  no 
active  part  in  election  arrangements,  further  than  to 
give  my  vote.  But  my  friends  tell  me  that  there  was 
no  concerted  effort  by  them  to  obtain  possession  of  the 
government  of  the  State."  In  spite  of  this,  since  the 
people  understand  who  are  the  "real  authors  of  the 
present  embarrassments  of  the  country,"  there  will  be 
16  more  "friends  of  administration"  in  the  next  House 
of  Delegates  than  in  the  last.^^ 

After  the  close  of  the  Circuit  Court's  term  and  awaiting 
the  assembling  of  the  Supreme  Court  in  January,  1838, 
Taney  felt^^  that  he  could  use  his  intervening  leisure  in 

^8  In  this  letter  Taney  requests  that  Jackson  send  him  a  copy  of  his  letter 
to  Jackson  at  the  Rip  raps  in  August,  1833. 
19  On  December  19,  1837. 


248  ROGER  BROOKE  TANEY 

no  better  way  than  in  writing  to  Jackson  to  express  his 
best  wishes  for  the  New  Year.  Having  returned  to 
Baltimore  with  his  family,  he  proposed  to  write  his 
memoirs,  so  as  to  show  from  official  documents  that  his 
conduct  in  "the  removal  of  the  deposites"  was  ''frank 
and  decided." 

The  generally  unfavorable  result  of  the  elections, 
showed  him  that  another  great  struggle  was  on  hand  to 
recharter  the  United  States  Bank,  but  in  Taney's 
opinion,  "if  our  friends  in  Washington  are  judicious, 
I  think  they  can  hardly  be  defeated."  He  could  not 
"entirely  approve  of  the  course  pursued  by  our  friend, 
Woodbury,"  as  to  the  Treasury  notes,  thinking  it  wrong 
to  issue  notes  at  2  per  cent — a  nominal  interest.  "A 
government  ought  never  to  pay  its  creditors  in  a  currency 
below  gold  or  silver,  if  it  has  the  means  of  doing  other- 
wise. For  public  confidence  is  always  liable  to  be  shaken 
in  the  administration,  when  the  public  securities  are 
depreciated."  His  opinion  was  unwavering,  that  the 
"real  public  disease  is  an  over  abundance  of  paper 
currency."  Treasury  notes  should  have  been  issued  at 
6  per  cent  interest,  and  they  would  have  served  for  in- 
vestment, as  well  as  for  exchange,  and  "would  gradually 
have  brought  specie  out."  "The  more  frequently  and 
commonly  it  is  seen,  the  sooner,"  in  Taney's  opinion, 
"will  confidence  be  restored  to  the  solvent  banks — the 
better  able  to  resume."  The  public  creditors  would 
not  then  have  been  compelled  to  accept  depreciated 
currency,  but  Taney  had  recently  seen  at  the  Circuit 
Court,  the  United  States  Marshal  "paying  jurors  and 
witnesses  summoned  by  the  United  States  in  paper 
trash,  as  low  as  halves  and  quarters."  Taney  continued 
that  "most  of  the  jurymen  in  the  Circuit  come  from 
the  country,   and   their  per  diem  allowance  does  not 


ROGER  BROOKE  TANEY  249 

support  them."  "Compelled  to  come  against  their 
will,  they  take  no  pleasure  in  being  paid  off  in  such 
currency,  when  they  know  that  the  merchants  receive 
their  debentures  and  Congressmen  their  per  diem  in 
gold  and  silver."  Taney  concluded  the  subject  with 
the  statement  that:  "I  write  more  of  politics  to  you 
than  I  usually  talk,  for  I  was  so  long  with  you  and  the 
currency  during  that  time  so  much  in  our  thoughts." 

On  April  14,  ISSS^o  Jackson  wrote  Taney  a  long  letter, 
in  response  to  a  lost  one  of  his,  written  on  December  19, 
1837.  Jackson  fully  appreciated  "the  talented  and 
energetic  aid"  he  received  from  Taney  and  Kendall  and 
believed  that  their  "firmness  of  character"  and  "high 
talent"  had  made  them  the  target  for  the  "hatred  and 
calumny  so  bitterly  displayed  against  you  and  myself." 
He  agreed  with  Taney's  views  that  the  policy  of  issuing 
Treasury  notes  was  a  bad  one  and  of  doubtful  con- 
stitutionality. 

Taney  wrote  Jackson,  on  May  28,  1838,  to  express  his 
regret  that  he  could  not  come  to  the  Hermitage  during 
the  coming  summer.^i  He  stated  that  he  was  kept  in 
Maryland  by  duties  as  trustee  for  the  settlement  and 
distribution  of  his  father's  estate.  "Nothing  so  soon 
gets  into  confusion,  or  requires  more  time  and  patience 
to  set  to  rights  again,"  Taney  wrote,  "than  the  accounts 
of  a  trust  estate,  in  which  many  are  interested. "  While 
Taney  was  a  member  of  the  cabinet,  nothing  had  been 
done  concerning  these  matters;  but  he  must  take  them 

20  Md.  Hist.  Mag.  vol.  4,  p.  305.  Jackson  expressed  his  hope  for  a  visit 
from  Taney. 

21  On  May  1,  1838,  Taney  wrote  George  Hughes  from  Washington,  to  ask 
him  to  find  a  place  for  an  unnamed  poor  young  relative  of  his,  whose  father 
was  dead.  The  youth  had  been  partly  educated  at  Edinburgh,  and  possessed 
industry  and  "the  best  disposition,"  although  he  was  not  of  a  "high  order  of 
intellect."    Mss.  in  N.  Y.  Public  Library. 


250  ROGER  BROOKE  TANEY 

Up  as  soon  as  he  shall  return  from  Delaware,  whither 
he  expected  to  go  on  the  morrow,  having  concluded  the 
sitting  of  the  Circuit  Court  in  Baltimore,  on  the  26th. 

He  hoped  to  employ  his  ''summer  season  of  leisure" 
in  sketching  scenes  in  Washington  during  the  "panic 
year,"  and  had  begun  to  do  so  in  the  previous  fall;  but, 
during  the  winter,  his  court  duties  had  been  "exceedingly 
laborious." 

He  could  not  refrain  from  the  discussion  of  politics, 
and  was  sorry  that  affairs  "go  on  badly  with  our  friends 
at  Washington"  and  that  there  existed  "a  want  of 
confidence  in  the  management  of  the  Treasury  Depart- 
ment." He  did  not  think  that  the  "stoppage  of  specie 
payments"  hurt  the  administration  and  the  elections  of 
last  October  in  Maryland  showed  that  "our  friends" 
were  stronger  than  for  many  years  past,  but  ground 
had  been  lost  since  that  time. 

"The  greatest  harm,"  came,  according  to  Taney's 
judgment,  "from  paying  out  bank  notes  and  depreciated 
treasury  notes  to  the  creditors  of  this  government, 
especially  to  those  whose  claims  arose  from  burdensome 
duties,  such  as  jurors,  witnesses,  etc."  He  repeated  his 
belief  that  Woodbury  should  have  issued  notes,  bearing 
six  per  cent  interest  at  first,  and  soon  would  have  re- 
ceived specie  in  return  for  them.  People  do  not  like  to 
see  the  Congressmen  paid  in  specie  and  others  in  notes 
of  banks.  Taney  hoped  that  Woodbury  would  accept 
the  position  of  Chief  Justice  of  New  Hampshire,  which 
he  understood  was  offered  him;  "for  he  is  an  honest 
man  and  a  good  lawyer  and  will,  doubtless  make  a  most 
diligent  judge,  and  I  fear  he  is  altogether  unfortunate  in 
his  plans  where  is  now  is."^^ 

22  Levi  Woodbury  (1789-1857)  succeeded  Taney  as  Secretary  of  the  Treasury 
in  1834.    He  was  appointed  to  the  Supreme  Bench  in  1845. 


ROGER  BROOKE  TANEY  251 

After  expressing  his  pleasure  that  Jackson  was  again 
well,  Taney  closed  his  letter  with  the  remark  that:  '*  It 
is  one  of  the  most  pleasing  recollections  of  my  life  that 
I  was  near  you  in  those  trying  times  through  which  you 
so  triumphantly  passed,  "^s 

During  the  next  summer,  Taney  remained  at  home, 
and  he  and  his  family  continued  well,  *' despite  continued 
and  oppressive  heat."  Commander  Elliott  of  the  Navy 
sent  him  an  alabaster  bust  of  Jackson  made  at  Naples, 
and,  naturally,  "not  an  exact  likeness."  The  bust  was 
framed  in  wood  from  Mount  Olivet  and  from  the  figure- 
head of  the  frigate  "Constitution,"  and  Taney  wrote 
Jackson  concerning  it,  on  September  12,  1838.  He 
rejoiced  in  Benton's  reelection  to  the  Senate  and 
"should  almost  have  despaired  of  the  Republic,"  if  such 
a  man  "had  not  been  sustained  by  the  people  of  an  ^\ 
agricultural  State."  In  large  commercial  cities,  Taney 
yet  feared  the  "money  power"  as  "irresistible,"  winning 
not  only  by  "open  corruption,"  but  also  by  indirect 
influence;  for,  when  men  have  families  to  support  and 
know  that  "they  will  be  employed  and  enriched  by  those 
who  have  the  power  to  distribute  wealth,"  they  will-" 
obey  the  wishes  of  the  wealthy,  rather  than  "struggle 
with  every  difficulty."  Men  "are  apt  to  persuade  them- 
selves that  the  path  with  the  fewest  difficulties  is  the 
best,"  and  to  "surrender  the  lasting  blessings  of  freedom 
and  manly  independence,  for  temporary  pecuniary 
advantages."  The  men  of  Taney's  day  can  not  help 
preaching  and  delivering  orations,  even  to  their  most 
intimate  friends,  and  the  letter  continued:  "They 
forget  the  grinding  oppression  that  awaits  them  from 
the   power   they   are   contributing   to   establish."     He 

2'  The  regrets  that  he  could  not  come  to  Tennessee  were  reiterated  by  Taney 
in  his  next  letter,  sent  from  Baltimore  on  September  12, 1838. 


'V 


252  ROGER  BROOKE  TANEY 

really  believed  in  the  truth  of  these  over-emphatic 
statements,  and  thought  the  prospect  a  gloomy  one, 
since  the  attempt  to  ''destroy  the  spirit  of  freedom" 
would  have  excited  indignation  ten  years  ago,  but  no 
longer  did  so.  He  hoped  that  the  ''honest  of  all  parties " 
would,  before  long,  rise  "to  frown  upon  it  and  put  it 
down."  If  the  laboring  classes  become  "servile  and 
corrupt,"  the  classes  which  made  them  such  will  be  the 
first  to  suffer. 

Grundy's  appointment  to  succeed  Butler^^  as  Attorney 
General,  pleased  Taney.  He  sincerely  regretted  to 
part  from  Butler,  who  had  remained  in  office  reluctantly 
for  a  year,  but  would  have  chosen  no  other  successor 
than  Grundy.  He  was  also  pleased  with  the  appoint- 
ment of  Mr.  Justice  Catron,  because  of  "the  strength 
of  his  judgment,  legal  knowledge,  and  high  integrity  of 
his  character.  He  is  a  most  valuable  acquisition  to  the 
Bench  of  the  Supreme  Court,  "^s 

On  January  10,  1839,  from  Baltimore,  Taney  next 
wrote  Jackson,  being  about  to  go  to  Washington  to 
open  the  term  of  Court.  He  hoped  to  come  to  the 
Hermitage  in  the  next  summer,  and  regretted  to  learn 
of  the  death  of  Colonel  Earle.  Benton's  "noble  and 
manly  speech"  in  Jackson's  defence,  pleased  him.  He 
referred  again  to  the  "passage  of  the  distribution  bill," 
as  "hailed  with  general  exaltation  by  the  opposition 
press,"  which  were  its  "first  victims."  The  administra- 
tion measures  would  have  prevented  disaster,  had  they 
not  been  counteracted  "by  the  extraordinary  infatuation 
which  seems  to  have  governed  the  commercial  world." 
Taney  never  gave  up  his  faith  in  the  correctness  of 
Jackson's  financial  measures. 

2^  Felix  Grundy  succeeded  Benjamin  F.  Butler  as  Attorney  General  in  1838. 
2^  The  letter  concluded  with  a  sending  of  regards  by  Alice  Taney  to  Mary 
Donelson.     So  did  the  letter  of  August  31,  1839. 


ROGER  BROOKE  TANEY  253 

In  April,  1839,  Taney  was  invited  to  be  present^^  at 
New  York  on  the  celebration  of  the  fiftieth  anniversary 
of  the  inauguration  of  Washington  as  President,  but  the 
session  of  the  Circuit  Court  prevented  him  from  attend- 
ance. Later  in  the  spring,  he  fell  ill,  and  Mrs.  Taney  was 
also  in  ''delicate  health,"  so  that  he  remained  at  home 
throughout  the  summer,  "exercising  almost  daily  by 
short  rides  on  horseback,"  by  which  course  he  re- 
covered his  health.  He  was,  therefore,  again  pre- 
vented from  visiting  Jackon,  to  whom  he  wrote  on 
August  31,  to  express  his  regret.  He  sent  congratula- 
tions upon  the  result  of  the  Tennessee  elections,  having 
not  felt  so  much  pleasure  over  any  State  election  since 
the  New  York  one  of  1834,  which  decided  the  fate  of 
the  ''panic  party."  The  recent  result  was  another 
proof  "that  the  agricultural  portion  of  the  Union  may 
be  misled  for  a  time,"  but  will  soon  discover  their  error 
and  do  justice  to  their  faithful  public  servants.  From 
the  nature  of  their  pursuits,  they  are  more  "independent 
of  the  money  power  than  the  people  of  the  commercial 
cities."  Jackson's  "enemies  regarded  their  former  vic- 
tory" in  Tennessee  "as  a  personal  triumph  over  you," 
as  Taney  wrote,  "in  your  own  State." 

Taney  knew  little  of  "election  prospects  in  Maryland, 
and  rarely"  saw  "any  of  the  active  politicians."  In 
Baltimore  City,  the  "friends  of  the  administration" 
were  "sanguine."  The  majority  in  the  House  of 
Representatives  may  depend  on  the  Maryland  delegation 
and,  "when  such  a  stake  is  to  be  played  for,  the  opposi- 
tion will  put  every  engine  in  motion,  and  money  from 
every  quarter,  if  necessary,  will  find  its  way  to  Balti- 
more to  control  the  election." 

26  Tyler,  p.  350. 


254  ROGER  BROOKE  TANEY 

Duane,  "anxious  to  escape  from  the  utter  nothing- 
ness into  which  he  has  fallen,"  had  published  the 
narrative  of  his  incumbency  of  the  Secretaryship  of  the 
Treasury,  and  had  sent  Taney  a  copy,  in  the  hope, 
probably,  that  "one  of  us,  or  some  of  our  friends,  would 
be  absurd  enough  to  give  it  consequence  by  answering  it. 
He  seems  never  to  have  had  elevation  of  character 
enough  to  understand  his  position  as  a  member  of 
the  cabinet."  This  rather  startling  statement,  Taney 
sought  to  justify,  by  claiming  that  Duane  wrote  down 
notes  of  conversations  with  Jackon,  so  as  to  injure  him. 
It  was  a  "new  thing  for  a  man  to  publish  to  the  world 
that,  while  holding  the  confidential  relation  of  a  cabinet 
minister,  ....  he  was  performing  the  part  of 
a  spy,"  so  as  to  furnish  Jackson's  enemies  with  weapons." 
The  statements  of  such  conversations,  on  the  evidence 
of  such  a  man,  Taney  held  not  worthy  of  much  credit. 
His  own  conversation  with  Duane  was  referred  to  by 
the  latter,  in  a  "manner  calculated  to  deceive. "^^ 
Benton's  late  speeches,  on  the  other  hand,  are  lauded. 
His  services  had  been  great  to  Jackson  and  also  to  Taney, 
when  "I  was  daily  assailed  in  the  Senate."  Duane's 
book  was  "such  a  mass  of  vanity,  folly  and  malignity, 
and  put  together  in  such  confusion  that  it  requires  some 
time,"  in  Taney's  opinion,  to  "find  out  what  he  is 
after  and  expose  his  duplicity."  Taney  wished  to  know 
whether  Jackson's  "recollection  agreed  with  his. 

In  his  letter  of  November  7,  he  again  congratulated 
Jackson  on  the  Tennessee  election.  "The  great  Regu- 
lator^s  too  has  fallen,  and  we  have  lived  to  see  every- 

''  Comments  on  Duane's  book  were  sent  by  Taney  on  November  7,  uncopied 
through  lack  of  time.  I  have  not  found  them.  Taney  had  just  returned  from 
holdmg  court  in  Delaware. 

28  The  Great  Regulator  is  probably  Clay. 


ROGER  BROOKE  TANEY  255 

thing  we  said  and  did,  verified  and  justified.'*  In  his 
exultation,  Taney  proceeded:  '*What  would  have  hap- 
pened, if  the  United  States  money  had  continued  in 
the  vaults  of  the  United  States  Bank!  whose  conduct" 
had  "been  the  cause  of  all  the  convulsions  in  the  country 
since  its  charter."  In  his  hostility  toward  such  an  insti- 
tution, Taney  wrote  that  a  Bank  of  the  United  States 
will  always  cause  such  convulsions,  ''periodically,  to  favor 
the  speculations  of  a  few  individuals  and  their  friends  who 
get  possession  of  it." 

Taney  enclosed  a  Maryland  election  ticket  of  the 
Democratic  party,  bearing  the  emblem  of  a  hickory 
tree,  and  Jackson's  name  as  a  watchword,  in  similar 
guise  to  the  emblems  born  on  the  tickets  of  that  party 
in  Maryland,  until  the  abolition  of  emblems  on  ballots 
in  1901. 

From  the  Hermitage  on  October  10,  1839,  Jackson 
answered  Taney's  letter.  His  own  health  was  better 
from  taking  the  "Matchless  Sanative,"  a  patent  medi- 
cine. He  regretted  that  Taney  had  not  as  yet  visited 
him,  but  still  hoped  for  such  a  visit,  and  would  have 
much  gratification  in  a  few  hours  personal  conversation 
with  Taney.  The  Tennessee  legislature  now  had  a 
"decided  Democratic  majority  in  both  Branches"  and 
"the  conduct  of  Duane,  as  exposed  in  his  Book,  "which 
contained  so  many  positive  falsehoods,"  had  destroyed 
him  in  the  estimation  of  all  honorable  men" — at  least 
in  that  of  Andrew  Jackson. 

In  the  Spring  of  1840,  Mrs.  Taney  fell  through  a  trap 
door  in  a  store,  and  broke  her  thigh,  so  that  Taney  was 
again  disappointed  in  his  hopes  to  visit  the  Hermitage. 
She  suffered  greatly,  and  the  splints  were  not  taken  off 
until  the  latter  part  of  August.  While  she  was  still 
confined  to  her  room  and  could  not  go  down  stairs,  nor 


256  ROGER  BROOKE  TANEY 

bear  much  weight  upon  her  leg,  Taney  wrote  Jack- 
son, on  September  4,  1840.  He  had  left  Baltimore  in 
the  past  season  only  to  hold  court  in  Delaware. 

He  criticised  Clay's  speech  at  Nashville,  a  town 
from  which  it  would  have  been  in  **  better  taste"  for  him 
"to  stay  away."2»  Clay's  attack  on  the  memory  of 
Edward  Livingston,  than  whom  a  "kinder,  or  more 
amiable  man  never  lived,"  was  "harsh  and  cruel," 
Livingston's  financial  troubles  in  New  York  came,  not 
because  he  used  public  money  for  private  purposes,  but 
because  he  was  a  "victim  of  kind  feehngs  toward  another 
who  abused  his  confidence."  At  any  rate,  he  paid  his 
debts,  before  he  was  nominated  as  Secretary  of  State.^" 

There  should  be  a  "vindication"  of  Jackson,  by  "our 
friends  at  Washington,"  but  Taney  thought  it  would  be 
unwise  for  Kendall  to  publish  Jackson's  life  yet,  since 
it  would  "be  treated  as  a  party  pubHcation."  Such  a 
"work  is  for  posterity"  and  should  await  a  "calmer 
occasion,"  when  the  "great  body"  of  the  American 
people  of  "all  parties  will  be  ready  to  acknowledge  how 
well  you  have  deserved  the  gratitude  of  your  country, 
from  your  civil  as  well  as  your  military  services." 
The  "friends  of  administration"  hoped  to  carry  Mary- 
land, which  State  was  always  doubtful. 

Recurring  to  the  currency,  Taney  wished  the  "Wash- 
ington friends  had  felt  more  strongly  the  necessity  of 
constant  exertion  on  the  part  of  the  government  to 
restore  the  circulation  of  gold  and  silver  and  to  counter- 
act the  efforts  of  those  who  are  striving  to  prolong  the 
present  state  of  the  currency."  Salaried  officials  at 
Washington  had  been  permitted  to  "sell  specie  drafts 

*'  Clay  attacked  Jackson's  nominations  to  office  as  "improper  and  injurious 
to  the  public  interest,"  yet  Taney  thought  that  he  voted  to  confirm  them. 

»°  Edward  Livingston  (1764-1836)  had  removed  to  Louisiana  in  1804 
because  of  financial  troubles  experienced  in  New  York. 


ROGER  BROOKE  TANEY  257 

given  them  for  their  salaries  for  depreciated  paper, 
thus  throwing  it  on  the  community,  in  return  for  specie 
collected  for  taxes."  The  government  also  furnished 
specie  in  large  amounts  for  export.  These  practices 
were  wrong,  in  Taney's  mind,  and  should  no  longer  be 
allowed.  If  clerks  could  not  sell  specie  drafts,  their 
money  would  be  "paid  out  in  small  sums  to  the  people" 
and  these  amounts  **  would  have  gone  far  to  restore 
confidence,  not  only  in  the  District  of  Columbia,  but 
also  in  the  surrounding  country,  and  would  have  done 
much  toward  driving  out  of  circulation  the  miserable 
and  fraudulent  shinplasters  with  which  the  country  is 
overrun."  Taney  was  apprehensive  that  the  "advo- 
cates of  paper  are  incessantly  on  their  watch  struggling 
against  the  introduction  of  specie,"  and  that,  unless 
the  "officers  of  government  are  equally  vigilant,"  the 
"paper  party  will  triumph." 

In  November,  Harrison,  the  Whig  candidate  for  the 
Presidency,  was  elected,  and  in  the  following  April, 
a  month  after  Taney  had  administered  to  him  the  oath 
of  office  as  President,  he  died,  and  Tyler,  the  Vice 
President,  succeeded  him.  Taney  was  in  Baltimore 
when  Harrison  died,  and  the  news  was  at  once  sent 
him.^i  Mr.  Carroll,  the  Clerk  of  the  Supreme  Court  on 
April  5,  wrote  Taney,  at  the  instance  of  Daniel  Webster, 
the  Secretary  of  State,  to  ask  him  to  be  present  at  the 
funeral,  and  to  "see  and  confer  with"  the  Cabinet 
"at  this  most  interesting  moment."  Taney  felt  that 
the  request  was  not  made  in  a  manner  which  comported 
with  the  dignity  of  his  august  tribunal,  and,  on  the  6th, 
replied  that:  "I  do  not  suppose  I  could,  with  pro- 
priety, come  to  Washington,  unless  I  am  requested  to 

31  Tyler,  p.  295, 


258  ROGER  BROOKE  TANEY 

do  SO  by  the  Cabinet,  or  by  the  Vice  President,  when  he 
arrives.  It  is  certainly  my  sincere  wish,  as  well  as  my 
duty,  to  pay  every  respect  to  the  memory  of  the  Presi- 
dent, and  to  render  every  service  in  my  power,  in  the 
new  and  painful  condition  of  public  affairs."  Taney 
did  not  feel  that  there  was  ''any  disrespect"  in  omitting 
to  give  him  a  "direct  invitation  from  the  Cabinet;"  yet, 
without  such  invitation,  he  was  unwilling  to  come  to 
Washington.  He  also  felt  that  he  should  not  state 
whether  his  opinion  was  that  Tyler  ought  to  take  a  new 
oath  of  office,  unless  "the  communication"  from  the 
Executive  Department  to  the  judicial  one  were  "direct 
and  from  the  proper  organ."  Taney  was  not  sanguine 
as  to  Tyler's  attitude,  and,  on  April  24,  1841,  he  wrote 
Jackson  that  he  was  surprised  to  find  that  many  Jack- 
sonians  "entertained  strong  hopes  that  the  elevation 
of  Tyler  to  the  Executive  Chair  would  bring  back  the 
government  to  the  principles  upon  which  you  ad- 
ministered it.  For  Mr.  Tyler  left  you,  upon  the  ground 
that  you  were  not  States  Rights  enough,  and  at  that  time, 
he  was  understood  to  go  to  the  verge  of  nullification." 
Did  he  not  say  it  was  a  "fanciful  notion"  that  a  "citizen 
owes  allegiance  to  the  State,  but  nothing  more  than 
obedience  to  the  general  government?"  Taney  thought 
it  "curious  that  ultra  States  Rights  men  should  have 
united  with  ultras  on  the  other  side."  As  Tyler  has 
been  associated  and  brought  to  power  by  the  latter, 
how  can  he  "be  expected  to  thwart  their  plans  of 
government?"  Tyler  had  been  "very  prompt  in  dis- 
tributing the  spoils  to  the  victors,  and  that  was  not 
exactly  according  to  Virginia  doctrine." 

Taney  believed  that  the  press  was  so  much  under 
the  influence  of  Biddle,  who  was  never  long  out  of  his 
mind,  that  it  was  not  pleasant  for  newspapers  to  write 


ROGER  BROOKE  TANEY  259 

concerning  the  "startling  disclosures"  which  had  been 
made  as  to  the  Bank  of  the  United  States,  and  there- 
fore little  appeared  on  that  subject.  The  revelation  of 
the  **  operations  of  the  exchange  committee  of  the  Bank,'* 
afforded  "proof  of  the  soundness  of  the  principles  upon 
which  we  determined  to  remove  the  deposites."  The 
Senate  Committee,  of  which  Tyler  was  chairman  at 
that  time,  in  its  report,  made  in  December,  1834,  "justi- 
fied and,  indeed,  praised  very  highly  this  Executive 
Committee,  and  reprehended  me  very  sharply  for  my 
report  to  the  contrary."  Tyler's  report  had  scarcely 
been  distributed,  before  the  Exchange  Committee 
"began  to  prey  upon  the  money  of  the  Bank  without 
stint  and  without  limit."  The  report  had  satisfied 
Biddle  that  there  was  no  danger  to  him  of  interruption, 
and  he  proceeded  to  use  the  Bank's  money,  "as  if  it  had 
been  his  own." 

Taney  feared  that  another  Bank  would  now  be 
"saddled  on  the  country."  "Separated  as  I  am  from 
all  political  movements,"  he  told  Jackson,  "I  yet  feel, 
when  I  am  writing  to  you,  as  if  we  were  again  together 
at  Washington."  He  hoped  to  meet  Jackson  in 
"another  and  better  world,"  if  not  in  this  life.  The 
hopes  of  the  visit  to  the  Hermitage  were  fading  away, 
for  Taney  had  "become,  of  late,  so  liable  to  sudden 
and  severe  attacks  upon  my  lungs  that  I  can  hardly 
expect  again  to  have  health  enough  to  justify  me  in 
venturing  upon  the  journey  to  visit  you." 

Writing  on  September  30,  1841,  Taney  told  Jackson 
that  Tyler  "Most  agreeably  disappointed  me."  He 
"possesses  the  utmost  firmness,  as  well  as  high  political 

integrity I  am  not  personally  acquainted 

with  him"  and  "did  him  injustice,"  having  had  "no 
confidence  in  him,  because  of  his  report"  of  1834,  when 


260  ROGER  BROOKE  TANEY 

Tyler  was  "deceived.'*  "Advantage  was  taken  of  his 
want  of  acquaintance  with  the  mysteries  of  banking, 
and,  in  the  heat  of  a  party  contest  and  at  the  head  of  a 
party  committee,  he  too  readily  gave  year  (sic)  to  men 
who  wanted  his  name  to  sanction  their  dishonest  pro- 
ceedings." Taney  rejoiced  that  he  had  lived  long 
enough  to  see  the  people  "rapidly  recovering  from  the 
delusions  under  which  they  were  recently  laboring,  and 
ready  again  to  do  justice  to  those  who  have  defended 
and  maintained  their  true  interests." 

The  Chief  Justice  could  never  get  far  from  one  subject 
in  these  letters,  and  he  now  exclaimed:  "What  a 
scene  of  iniquity  has  been  disclosed  by  the  fall  of  that 
Bank!"  This  iniquity  would  have  been  concealed  by 
a  recharter  and  had  its  existence  been  "extended  for 
20  or  30  years  and,  with  additional  means,  one  can 
hardly  imagine  the  ruin  which  would  have  followed  its 
fall!"  The  "honest  and  industrious"  will  soon,  "with 
one  voice,  acknowledge  how  much  they  owe  to  "Jack- 
son's "courage  and  firmness  and  foresight."  His  "old 
friends"  in  Maryland  were  "in  spirits"  and  hoped  for 
"success  in  a  hard  struggle"  to  elect  a  Governor^^  ^nd 
an  House  of  Delegates.  "Our  State  is  small  and  full 
of  corporations — some  of  them  gigantic  ones — and 
they  have  flooded  the  State  with  irredeemable  paper, 
some  of  it  greatly  depreciated,  and  becoming  worse 
and  worse  every  day." 

Taney's  "own  health"  was  "delicate,"  and  although, 
as  he  wrote,  "when  I  take  care  of  myself,  I  get  along 
very  comfortably,  yet  I  find  that  I  cannot  bear  much 
exposure."  Eight  months  later,  on  May  22,  1842, 
Taney  wrote  again  deploring  his  "own  infirm  health, 

^Jackson's  "old  friend,"  Francis  Thomas,  was  the  Democratic  candidate 
for  Governor  and  was  elected. 


ROGER  BROOKE  TANEY  261 

which  has  prevented  me  from  seeing  you  once  more." 
He  "can't  stand  so  long  a  journey"  as  to  Tennessee 
**in  the  heats  of  summer,"  and  at  other  times,  is  en- 
gaged in  Court,  to  hold  which  he  expected  to  go  to 
Delaware  on  the  morrow. 

Jackson  answered  the  letter  of  September  30,  1841,33 
on  November  27.  He  speaks  of  his  own  ill  health, 
rejoices  over  the  favorable  result  of  the  autumn  elec- 
tions, was  much  pleased  with  Tyler's  course  in  the 
Presidency,  showed  great  bitterness  toward  his  oppo- 
nents, and  now  despaired  of  ever  having  the  pleasure 
of  conversing  with  Taney,  because  of  the  latter's 
"arduous  duties  and  the  care  necessary  to  preserve 
his  health  and  useful  life." 

Jackson's  ill  health,  his  disappointment  at  failing 
to  meet  Taney  again,  and  his  hope  to  have  that  meeting 
"in  a  happier  clime"  are  the  themes  of  his  letter  of 
June  15,  1842,  the  last  one  found,  which  was  an  answer 
to  Taney's  letter  of  May  22.^'* 

Although  "withdrawn  from  political  movements," 
the  Maryland  election  of  1842  gave  Taney  "no  small 
pleasure,"  as  he  wrote  Jackson  on  October  24,  rejoicing 
to  see  the  "delusions  of  '40"  pass  away.  He  was  even 
happier  over  the  results  in  Pennsylvania  and  Ohio, 
because  they  were  more  important,  and  because,  in 
Ohio,  "the  miserable  and  disgraceful  buffoonery  of 
coonskins  and  hard  cider  was  again  revived"  by  Clay. 
After  these  elections,  there  was  no  longer  any  danger 
of  a  new  "great  National  Bank"  to  "govern  the  country 
by  corruption  and  to  enrich  its  favorites,  at  the  expense 
of  the  industrious  and  unsuspecting  classes  of  society." 
Tyler  was   "entitled   to   high   praise   for  the   firmness 

334  Md.  Hist.  Mag.  311. 
M4Md.  Hist.  Mag.  313. 


262  ROGER  BROOKE  TANEY 

with  which  he  had  resisted  the  violent  efforts  to  force'' 
a  Bank  upon  the  people.  Yet  Taney  wondered  that 
Tyler  could  not  see  that  the  "source  of  evil  lies  deeper" 
in  a  "paper  currency."  A  "National  Bank  is  nothing 
more  or  less  than  the  worst  possible  form  in  which  a 
paper  currency  can  be  established."  Taney  beHeved 
that  "the  paper  money  scheme  of  President  Tyler  is 
nearly  as  bad  as  a  bank,"  but  the  bill  embodying  it  can 
be  repealed  at  any  time.  If  the  government  issue  paper 
money,  it  will  soon  become  an  "instrument  of  corrup- 
tion and  injustice  and  involve  the  country  again  in 

all  the  madness  of  speculation The  idea  of 

paper,  always  convertible  into  gold  and  silver,  is  a  mere 
fallacy."  No  government  would  incur  the  "expense 
of  issuing  paper,  and  paying  clerks  to  keep  an  account 
of  it,"  if  it  was  not  possible  to  "have  more  paper  out 
than  they  had  specie  on  hand."  Paper  was  not  of 
"superior  convenience,"  to  Taney's  mind,  and  "no 
traveller  ever  felt  himself  discomforted  by  10  or  a  dozen 
half  eagles  in  his  pocket."  Larger  sums  could  be 
supplied  by  "bills,  founded  on  the  ordinary  operations 
of  commerce,  between  distant  places."  The  plan 
adopted  by  Jackson,  when  the  "deposites  were  re- 
moved," was  the  only  safe  one — "to  prohibit  the  circu- 
lation of  small  notes. "35  Jackson,  by  his  "courage  and 
foresight,  laid  the  foundations"  of  the  necessary  re- 
form, "under  the  most  trying  circumstances,  by  over- 
throwing the  gigantic  corporation  that  would  per- 
petuate the  evil. 3® 

*  Taney  again  wrote  that  he  formerly  thought  that  a  $20  note  might 
be  issued,  but  now  he  put  the  limit  at  $50,  of  course  making  the  alteration 
gradually. 

•^  Taney  again  enclosed  an  election  ticket,  as  a  proof  of  the  appreciation  of 
Jackson  by  the  people,  and  stated  that  his  family  have  been  ill,  but  are  now  well. 


ROGER  BROOKE  TANEY  263 

Writing  on  April  28,  1843,  Taney  stated  that  he  was 
pleased  to  learn  of  Jackson's  popularity  in  Louisiana. 
''Whatever"  the  corrupt  influences  of  the  Bank  and 
paper  money  might  accomplish  in  other  places,  by 
continually  misrepresenting  you,  ....  it  has 
always  seemed  to  me  impossible  that  they  could  have 
kept  alive  so  rancorous  an  opposition"  to  Jackson  *4na 
city  and  State  which  owed  so  much  to  him,"  because  of 
his  victory  at  New  Orleans  over  the  British  in  1814.^8 

Although  he  had  been  several  years  on  the  Bench  of  the 
Circuit  in  which  Virginia  was  included,  Taney  did  not 
hold  court  in  Richmond  until  May,  1843,  at  which 
time^^  he  was  elected  an  honorary  member  of  the  Quoit 
Club  at  Buchanan's  Spring,  of  which  club  Chief  Justice 
Marshall  had  been  a  frequenter.  Taney's  health  "gave 
way  a  good  deal"  about  that  time,  so  that  he  had  to 
spend  part  of  the  summer  at  a  sulphur  spring,  near 
Winchester,  Virginia.  In  the  autumn,  he  was  better, 
and  wrote  Jackson  on  October  14,  anew  regretting  that 
he  could  not  come  to  Tennessee. 

Retired,  as  he  wrote  that  he  had  been,  "from  any 
active  concern  in  political  affairs  since  I  have  been  on 
the  Bench,"  he  was  surprised  that  the  elections  in 
Maryland  went  "against  us."  For  months  past,  how- 
ever, "our  prominent  men"  had  been  "beating  down 
rivals  in  their  own  ranks"  and  the  result  was  "the 
destruction  of  the  party."  Remembering  Jackson's 
"unshaken  confidence  in  the  virtue  and  intelligence  of 
the  people,"  Taney  trusted  the  future  might  be  better,^^' 

'^  Jackson  and  Kendall  asked  Taney  to  prepare  notes  on  his  cabinet  experi- 
ences for  the  latter's  life  of  the  former,  and  Taney  promised  to  do  so. 

88  Francis  Scott  Key  had  died,  and  Mrs.  Taney  had  suffered  so  much  from 
her  brother's  death  as  to  "impair  her  health  seriously." 

39  Tyler,  p.  325.  On  his  return — vide  letter  to  Jackson  of  Jan.  4,  1844,  he 
visited  the  Norfolk  Navy  Yard  and  saw  the  frigate  Constitution. 

^°  He  remembered  "many  acts  of  kindness  and  friendship"  from  Jackson. 


264  ROGER  BROOKE  TANEY 

but  could  not  avoid  the  foreboding  that  another  Bank 
may  come,  since  "paper  money  and  its  necessary  con- 
sequences, i.e.,  speculation  and  the  desire  of  growing 
rich  suddenly  without  labor,  have  made  fearful  inroads 
upon  the  patriotism  and  public  spirit  of  what  are  called 
the  higher  classes  of  society." 

On  January  4,  1844,  he  sent  New  Year's  wishes  to 
Jackson,  and  expressed  pleasure  that  the  fall  elections 
were  better.  "Our  friends"  seem  to  "feel  the  necessity 
of  healing  their  divisions  ....  to  meet  the 
common  enemy.  "^^ 

After  Polk  was  elected  to  the  Presidency,  Taney  wrote 
Jackson,  on  November  20,  1844,  to  congratulate  him, 
and  hopefully  said:  "the  spirit  of  '28  and  '32  was  again 
abroad  in  this  election,  and  has  signally  triumphed  and 
the  country  will  now  have  peace  for  many  years.  For 
the  dangerous  and  evil  influences,"  which  united  for 
Clay,  will  not  do  so  for  another.  He  would  administer 
the  oath  of  office  to  Polk  with  pleasure,  and  thanked  God 
that  Jackson  had  "lived  to  witness  this  great  triumph." 

On  January  1,  1845,  from  Washington,  Taney  sent  his 
last  letter  to  his  former  chief,  to  "Wish  you,  according 
to  our  good  old  Maryland  custom,  a  happy  New  Year, 
and  many  returns  of  it.  The  day  never  passes  without 
my  thinking  of  you  and  your  many  kindnesses  to  me."^^ 
Since  he  had  been  on  the  bench,  Taney  had  "abstained 
from  taking  part  in  political  movements,  but  the  sincere 

*^Ke  hoped  that  the  Democratic  Presidential  Convention  in  the  spring 
would  be  unanimous,  and  referred  to  the  "most  unjustly  imposed"  fine  on  Jack- 
son by  Judge  Hall,  as  a  surprising  proof  of  "how  far  party  spirit  blinds  men." 
He  also  deplored  Dr.  Linn's  death. 

*2  Jackson  was  even  more  than  usual  in  Taney's  thoughts  on  that  day,  for 
he  had  gone  to  the  "Presidential  Mansion"  and  had  just  received  a  call  from 
Major  Lewis,  who  showed  him  in  confidence  a  letter  from  Jackson  which  rejoiced 
Taney. 


ROGER  BROOKE  TANEY  265 

regard  I  entertain  for  Mr.  Polk  and  the  trying  times 
through  which  he  and  I  passed  together,  made  it  more 
difficult  for  me  to  remain  quiet,  when  he  and  Mr.  Clay 
were  opposing  candidates."  Taney  had  hoped  that 
Calhoun  would  retire  from  the  Cabinet,  at  the  end  of 
Tyler's  term  of  office;  but,  as  Jackson  always  said  of 
Calhoun,  "with  all  his  talents,  he  had  no  judgment." 
If  he  "does  not  retire,  Polk's  first  act,  in  asking  him  to 
do  so,  will  require  firmness,  or  his  administration  will 
be  a  failure.  None  of  his  cabinet  officers  should  be  a 
candidate  for  the  Presidency.  If  Calhoun  be  retained, 
the  Administration,  in  less  than  12  months,  will  find  it- 
self in  a  minority  of  its  own  party."  Taney  thought 
that  the  rest  of  the  cabinet  might  continue  in  office  and 
he  would  retain  at  least  Wilkins,  Mason  and  Wickliffe,^^ 
who  possessed  ' '  great  ability . ' '  Polk  was  a  ' '  statesman , ' ' 
but  could  not  carry  on  "the  government  successfully," 
unless  he  followed  Jackson's  example,  heard  everything 
and  then  decided  for  himself.  Jackson  was  not  destined 
to  even  one  more  year  of  life,  for  he  died  on  June  8, 
1845.^''  Taney  was  invited  to  attend  memorial  services 
held  in  New  York,  and  replied,  declining  the  invitation, 
and  giving  this  estimate  of  the  dead  man  : 

The  whole  civilized  world^^  already  knows  how  bountifully  he 
was  endowed  by  Providence  with  those  high  gifts  which  qualified 

^3  These  members  of  the  Cabinet  were  William  Wilkins  of  Pennsylvania, 
John  Y.  Mason  of  Virginia  and  Charles  A.  Wickliffe  of  Kentucky. 

**An  unaddressed  letter,  written  by  Taney  (Mss.  N.  Y.  Public  Library) 
dated  August  27,  1845,  at  Jordan's  Springs,  states  that  he  cannot  order  an 
"original  paper,"  out  of  the  keeping  of  the  Supreme  Court,  but  that  the  Court 
alone  can  issue  such  an  order. 

^  Parton's  Life  of  Jackson,  III,  p.  680.  When  Jackson  died,  Taney  presided 
at  a  meeting  in  Baltimore  on  Nov.  9,  1845,  at  which  it  was  resolved  to  erect 
a  monument  to  Jackson  in  Baltimore  and  Taney  was  chosen  president  of  the 
association.    The  plan  was  unsuccessful. 


266  ROGER  BROOKE  TANEY 

him  to  lead,  both  as  a  soldier  and  a  statesman.  But  only  those 
who  were  around  him  in  times  of  anxious  deliberation,  when  great 
and  mighty  interests  were  at  stake  and  who  were  with  him  also  in 
the  retired  scenes  of  domestic  life,  in  the  midst  of  his  family  and 
friends,  can  fully  appreciate  his  innate  love  of  justice,  his  hatred  of 
oppression  in  every  shape  it  would  assume,  his  magnanimity,  his 
entire  freedom  from  any  feeling  of  personal  hostility  to  his  political 
opponents  and  his  constant  and  unswerving  kindness  and  gentle- 
ness to  his  friends. 


CHAPTER  XI 
The  Period  of  the  "Genesee  Chief"  (1846-1856) 

In  1847,  the  Supreme  Court  decided  the  so-called 
License  Cases, ^  ably  argued  by  Webster,  Rufus  Choate, 
John  Davis  and  John  P.  Hale.  The  decision  was  a 
curious  one,  for  the  judges  could  not  agree  upon  the 
reasoning  and  seven  of  the  nine  justices  filed  opinions. 
The  Court  was  unanimous  to  the  effect  that  a  State  can 
constitutionally  regulate,  or  prohibit  the  sale  of  wines 
or  spirits  which  the  Federal  law  has  authorized  to  be 
imported  from  other  countries.  To  put  the  matter  in 
another  aspect,^  a  majority  of  the  justices  held  that  the 
Congressional  power  in  this  matter  was  not  exclusive.^ 
Taney  seized  the  true  distinction  in  his  opinion,  when 
he  maintained  that,  if  the  Statutes  had  obstructed  the 
importation  of  the  liquor,  or  had  prevented  its  sale  in 
the  original  cask  in  the  importer's  hands,  they  would 
have  conflicted  with  the  Congressional  power;  but  the 
laws  did  not  so  conflict,  because  they  were  intended  to  act 
upon  the  liquor,  after  it  had  passed  the  line  of  foreign 
commerce  and  had  become  a  part  of  the  general  prop- 
erty of  the  State. ^ 

The  law  of  Congress  is  the  supreme  law  and  "must  /7 

prevail  over  the  law  of  the  State  in  conflict  with  it."  V 

*  5  Howard,  504,  Thurlow  v.  Mass.,  Fletcher  v.  R.  I.,  Pierce  v.  N.  H.  -^ 
2  In  his  opinion  in  the  Passenger  Cases. 

*  The  New  Hampshire  case  had  slightly  different  facts,  as  we  shall  see,  but 
all  the  cases  involved  prohibition  laws  of  the  New  England  States. 

*  Tyler,  p.  297.  The  original  package  decision,  Leisy  v.  Hardin,  135  U.  S. 
100,  overruled  the  case  of  Pierce  v.  New  Hampshire.  Mickell,  "Great  Am. 
Lawyers,"  IV,  131,  praises  Taney's  opinion,  which  is  "so  carefully  thought 
out,  and  is  so  charming  in  exposition  that  it  irresistibly  compels  the  mind  to 
its  conclusions." 

267 


268  ROGER  BROOKE  TANEY 

Beyond  the  limits  of  the  Federal  Constitution,  the  States 
retain  their  power  over  trade  and  commerce  and  each 
State  "may  regulate  its  own  internal  traffic,  according 
to  its  own  judgment  and  upon  its  own  views  of  the  in- 
terest and  well  being  of  its  citizens."  The  difficulty 
lies  in  the  application  of  these  principles.  "How  far 
may  a  State  regulate,  or  prohibit,  the  sale  of  ardent 
spirits,  the  importation  of  which  from  foreign  countries 
has  been  authorized  by  Congress?"  Taney,  like  many 
another  judge,  found  it  "no  easy  task  to  mark  out  by 
certain  and  definite  line,  the  division  between  foreign 
and  domestic  commerce,  and  to  fix  the  precise  point  in 
relation  to  every  important  article,  where  the  paramount 
power  of  Congress  terminates  and  that  of  the  State 
begins."  The  Constitution  did  not  draw  that  line,  so 
it  was  necessary  for  judicial  decision  to  be  made  there- 
upon. The  first  case  upon  this  subject  was  Brown  v. 
Maryland,  in  which  it  was  virtually  decided  that,  when 
the  original  package  was  broken  up,  the  State  law 
attached  to  the  goods.  Taney  then  made  the  following 
confession : 

I  argued  the  case  in  behalf  of  the  State  and  endeavored  to  main- 
tain that  the  law  of  Maryland,  which  required  the  importer,  as 
well  as  other  dealers,  to  take  out  a  license,  before  he  could  sell, 
and  for  which  he  was  to  pay  a  certain  sum  to  the  State,  was  valid 
and  constitutional  and,  certainly,  I  at  that  time,  persuaded  myself 
that  I  was  right  and  thought  the  decision  of  the  Court  restricted  the 
powers  of  the  State,  more  than  a  sound  construction  of  the  Consti- 
tution of  the  United  States  would  warrant.  But  further  and  more 
mature  reflection  has  convinced  me  that  the  rule  laid  down  by  the 
Supreme  Court  is  a  just  and  safe  one;  and  perhaps  the  best  that 
could  have  bee^n  adopted,  for  preserving  the  right  of  the  United 
States,  on  the  one  hand,  and  of  the  States,  on  the  other,  and  pre- 
venting collision  between  them.  The  question,  I  have  already 
said,  was  a  very  difficult  one  for  the  judicial  mind. 


ROGER  BROOKE  TANEY  269 

Taney  did  not  see  how  the  line  could  be  "drawn  more 
accurately,  and  correctly,  or  more  in  harmony  with  the 
obvious  intention  and  object  of  this  provision  in  the 
Constitution."  While  goods  remain  in  the  hands  of 
the  importer,  they  may  be  considered  as  in  transitu  and, 
consequently,  a  state  tax  on  them  would  be  ''hardly 
more  justifiable  than  a  transit  duty  upon  the  merchan- 
dise, when  passing  through  a  State."  "A  tax  in  any 
shape  upon  imports,"  Taney  continued,  "is  a  tax  on 
the  consumer,  by  enhancing  the  price,"  and  a  State 
must  not  raise  a  revenue  "for  the  support  of  its  own 
government,  from  citizens  of  other  States,"  either  by 
a  duty  on  imports,  or  indirectly.  Otherwise,  a  State 
could  "defeat  one  of  the  principal  objects  of  forming 
and  adopting  the  Constitution. "  A  tax  on  the  property 
of  the  importer  is  very  different  from  a  tax  upon  the 
thing  imported. 

Liquor  is  not  to  be  kept  out  of  the  community  as 
pestilence  or  pauperism  should  be;  for  these  are  not 
subjects  of  commerce,  "not  things  to  be  regulated  and 
trafficked  in,  but  to  be  prevented."  "Spirits  and  dis- 
tilled liquors  are  universally  admitted  to  be  subjects 
of  ownership  and  property  and  are,  therefore,  subjects 
of  exchange,  barter,  and  traffic,  like  any  other  com- 
modity in  which  a  right  of  property  exists."  Congress, 
consequently,  has  the  power  to  "admit  or  not,  as  it 
shall  seem  best,  the  importation  of  ardent  spirits," 
and  no  State  may  prohibit  their  introduction.  The 
laws  of  Massachusetts  and  Rhode  Island,  however, 
"act  altogether  upon  the  retail  or  domestic  traffic 
within  their  respective  borders,"  and  act  on  the  article, 
"after  it  has  become  a  part  of  the  general  mass  of  the 
property  in  the  state." 


•^-»-«^.^^- 


\.^JC p 

270        _   /  ROGER  BROOKE  TANEY 


/  Though  a  State  is  bound  to  receive  and  to  permit  the  sale  by 

^  the  importer  of  any  article  of  merchandise  which  Congress  author- 

ized to  be  imported,  it  is  not  bound  to  furnish  a  market  for  it, 
nor  to  abstain  from  the  passage  of  any  law  which  it  may  deem 
necessary,  or  advisable,  to  guard  the  health,  or  morals  of  its 
j  citizens,  although  such  a  law  may  discourage  importation,  or 

;  diminish  the  profits,  of  the  importer,  or  lessen  the  revenue  of  the 

;  general  government.    And  if  any  State  deems  the  retail  traffic  in 

j  ardent  spirits  injurious  to  its  citizens  and  calculated  to  produce 

/  idleness,  vice,  or  debauchery,  I  see  nothing  in  the  Constitution  of 

the  United  States  to  prevent  it  from  regulating  and  restraining  the 
trafiic,  or  from  prohibiting  it  altogether,  if  it  thinks  proper. 

•  The  New  Hampshire  case  was  based  on  a  different 
principle  from  the  other  two.  The  plaintiffs  bought  a 
barrel  of  gin  in  Boston,  brought  it  to  Dover  and  sold  it 
in  the  cask  in  which  it  had  been  imported,  without  the 
license  of  the  Selectmen  of  the  town,  as  required  by  the 
State  law.  The  case  differed  from  Brown  v.  Maryland, 
in  that  it  arose  out  of  commerce  between  two  States,  as 
to  a  matter  in  regard  to  which  Congress  had  not  exercised 
its  power.  The  article  had  not  passed  beyond  the  limits 
of  interstate  commerce  and  the  regulation  acted  upon  it, 
"while  it  is  within  the  admitted  jurisdiction  of  the 
general  government  and  subject  to  its  control  and  reg- 
ulation . ' '  The  question ,  then ,  was  whether  a  State  might 
make  regulations  of  such  commerce,  which  do  not  come 
into  conflict  with  the  laws  of  Congress,  or  whether  the 
grant  to  Congress  was  "of  itself  a  prohibition  to  the 
States,"  rendering  their  laws  on  the  subject  void.  To 
Taney,  it  appeared  "to  be  very  clear  that  the  mere 
grant  of  power  to  the  general  government  cannot,  upon 
any  just  principles  of  construction,  be  construed  to  be 
an  absolute  prohibition  to  the  exercise  of  any  power 
over  the  same  subject  of  the  State The 


ROGER  BROOKE  TANEY  271 

State  may  ....  for  the  safety,  or  convenience, 
of  trade,  or  for  the  protection  of  the  health  of  its  citizens, 
make  regulations  of  commerce  for  its  own  ports  and 
harbors  and  for  its  own  territory  and  such  regulations 
are  valid,  unless  they  come  in  conflict  with  a  law  of 
Congress."  There  is  no  prohibition  to  the  making  of 
such  regulations  by  the  States,  in  the  language  of  the 
grant  to  Congress,  nor  can  such  prohibition  be  inferred, 
by  comparing  the  provision  on  this  subject  with  those 
that  relate  to  other  powers  granted;  for,  in  many  in- 
stances, after  a  grant  to  the  United  States,  the  Constitu- 
tion proceeds  to  prohibit  the  exercise  of  the  same  power 
by  the  States.  If  it  was  "intended  to  prohibit  the 
States  from  making  any  regulations  of  commerce,  it  is 
difficult  to  account  for  the  omission"  of  a  prohibition. 

"If  the  framers  of  the  Constitution  (knowing  that  a 
multitude  of  minor  regulations  must  be  necessary,  which 
Congress  amid  its  great  concerns  could  never  find  time 
to  consider  and  provide)  intended  merely  to  make  the 
power  of  the  Federal  Government  supreme  upon  this 
subject  over  the  States,  then  the  omission  of  any  pro- 
hibition is  accounted  for  and  is  consistent  with  the 
whole  instrument."  If  the  mere  grant  of  the  power 
over  commerce  to  the  United  States  was  in  itself  a 
prohibition  to  the  States,  there  would  be  no  necessity 
of  providing  for  the  supremacy  of  Congress,  as  all  State 
laws  would  be  ipso  facto  void  and  there  could  be  no 
conflicting  legislation.  "Only  where  both  can  legislate 
on  the  subject"  can  the  question  arise.  Furthermore, 
the  practice  of  the  Federal  government,  in  regard  to 
pilotage  laws,  had  conformed,  in  Taney's  view,  to  this 
theory. 

Pilotage  is  a  subject,  "admitted  on  all  hands  to  belong 
to  foreign  commerce,"  and  subject,   therefore,   to  the 


272  ROGER  BROOKE  TANEY 

regulations  of  Congress,  yet  it  is  "continually  regulated 
by  the  maritime  States,  as  fully  and  entirely,  since  the 
adoption  of  the  constitution,  as  before."  The  only  law 
of  Congress  was  passed  as  late  as  1837  and  was  intended 
only  to  modify  one  provision  of  the  New  York  law.  The 
Federal  act  of  1789,  providing  that  pilotage  should  con- 
tinue to  be  regulated  by  the  laws  of  the  States,  then  in 
force  or  hereafter  passed  by  them  until  Congress  should 
make  some  other  provision,  would  not  have  been  con- 
stitutional, if  the  grant  to  Congress  had  involved  a 
prohibition  to  the  States,  yet  the  validity  of  the  law 
had  never  been  questioned. 

So  also  health  and  quarantine  regulations  are,  nec- 
essarily, in  some  degree  regulations  of  foreign  commerce, 
yet  they  are  upheld  as  valid.  Taney  considered  that 
the  proper  construction  of  the  whole  decision  in  the  case 
of  Gibons  v.  Ogden  supported  his  view.  The  police 
powers  "are  nothing  more  nor  less  than  the  powers  of 
government,  inherent  in  every  sovereignty  to  the  extent 
of  its  dominions."  "By  virtue  of  this  power  of  sov- 
ereignty, a  State  legislates,"  and  "its  authority  to  make 
regulations  of  commerce  is  as  absolute  as  its  power  to 
pass  health  laws,"  except  in  so  far  as  it  has  been  re- 
stricted by  the  Constitution  of  the  United  States. 

In  this  view  of  the  matter,  the  objects  and  motive 
of  the  State  are  of  no  importance,  for  the  question  is  one 
of  power.  If  States  cannot  make  regulations  of  foreign 
commerce,  such  regulations  are  void,  whatever  may 
be  their  real  object,  and  no  Congressional  action  is 
needed  to  control  them.  Gibbons  v.  Ogden  said  that 
such  regulations  could  be  made  by  a  State,  subject  to 
such  control.^  Consequently  the  grant  to  "the  Federal 
government  is  not  an  absolute  and  entire  prohibition 

'  Gibbons  v.  Ogden,  9  Wheaton  1. 


ROGER  BROOKE  TANEY  273 

to  the  States;  but  merely  confers  upon  Congress  the 
superior  and  controlling  power/  Congress  had  made 
no  regulation  here,  so  New  Hampshire  might  lawfully 
regulate  the  traffic  in  liquor,  "as  soon  as  it  is  landed  in 
its  territory."^ 

The  relation  of  States  to  the  Nation  was  also  con- 
sidered by  Taney  at  this  term,  in  the  case  of  Cook  v. 
Curtis.^  He  stated  that  he  had  tried  the  case  in  the 
Court  below  and  had  rendered  such  a  decision  as  that 
from  which  appeal  had  been  taken;  because,  "sitting 
as  an  inferior  tribunal,"  he  felt  bound  by  the  prior 
decisions  of  the  Supreme  Court,  though  he  could  "not 
assent  to  the  correctness  of  the  reasoning"  on  which 
they  were  founded.  Now,  his  opinion  was  that  the 
judgment  in  the  Circuit  Court  ought  to  be  affirmed, 
according  to  the  decisions  heretofore  given,  because  the 
majority  of  the  justices  had  determined  not  to  consider 
the  question  as  to  the  operation  of  State  insolvent  laws, 
an  open  one.  "But  in  my  opinion,"  Taney  continued, 
"these  decisions  are  not  in  harmony  with  some  of  the 
principles  adopted  and  sanctioned  by  this  Court  and, 
therefore,  ought  not  to  be  followed."  Ogden  v. 
Saunders^  was  wrong  in  saying  that  there  was  a  collision 

®  Taney  also  appealed  to  Marshall's  opinion  in  Wilson  v.  Blackbird  Marsh 
Co.,  2  Peters,  245. 

'Taney  uses  this  interesting  sentence  as  to  the  construction  of  opinions: 
"In  referring  to  the  opinions  of  those  who  sat  here  before  us,  it  is  but  justice 
to  them,  in  expounding  their  language,  to  keep  in  mind  the  character  of  the  case 
they  were  deciding.  This  is  more  especially  necessary,  in  cases  depending 
upon  the  construction  of  the  Constitution  of  the  United  States,  where,  from 
the  great  public  interests  which  must  always  be  involved  in  such  questions,  the 
Court  have  usually  deemed  it  advisable  to  state,  very  much  at  large,  the 
principles  and  reasoning,  upon  which  their  judgment  was  made,  by  the  counsel 
on  either  side  in  the  argument."  Biddle,  Const.  Hist.,  p.  165,  speaks  of  Taney's 
opinion  as  a  "calm,  just,  and  (in  my  opinion),  convincing  presentation  of  the 
entire  subject." 

8  5  Howard  295. 

» Ogden  v.  Saunders,  12  Wheaton  213. 


274  ROGER  BROOKE  TANEY 

between  the  United  States  and  a  State,  when  the  latter 
passes  beyond  its  own  limits  and  the  rights  of  its  citizens 
and  acts  on  the  citizens  of  other  States.  How  can  the 
State  laws  ''pass  beyond"  the  State's  limits  except  by 
comity?  and,  within  those  limits,  Taney  maintained, 
they  should  be  binding  on  the  Federal  Courts,  as  well 
on  those  of  the  State  itself.^^ 

The  question  as  to  whether  damages  were  due  the 
Bank  of  the  United  States  from  the  protest  of  the  bill 
of  exchange  on  France  was  decided  in  favor  of  the  United 
States  at  this  term.  Taney  withdrew  from  the  bench 
during  the  argument,  because  he  had  given  an  opinion 
upon  the  matter,  while  he  was  Attorney  General,  but 
stated  that  the  concurred  with  the  Court's  opinion. ^^ 

In  Sheppard  v.  Wilson^^  Taney  and  the  Court  re- 
frained from  pronouncing  an  opinion,  until  Congress 
had  the  opportunity  to  pass  an  act  to  supply  the  omis- 
sion of  previous  legislation  as  to  appeals  from  territorial 
courts,  and,  in  Rowan  v.  Runnells^^  he  refused  to  reverse 
a  decision  of  a  Federal  Court  declaring  a  contract  valid, 
though,  subsequently,  the  highest  Court  of  the  State, 
where  the  contract  was  made  and  was  to  be  performed, 
decided  a  similar  con  tract  ^^  to  be  invalid,  because  it  was 
prohibited  by  the  State  Constitution.  He  remarked 
that,  "undoubtedly,  this  Court  will  always  feel  itself 
bound  to  respect  the  decisions  of  the  State  Courts  and, 
from  the  time  they  are  made,  will  regard  them  as  con- 

10  The  court's  decision  was  that  the  insolvent  law  of  Maryland  could  not 
discharge  a  man  from  a  New  York  debt.  Taney  refers  to  Story's  "Conflict 
of  Laws,"  in  which  volume  decisions  are  "collected  together,  and  arranged,  and 
commented  on,  with  the  usual  learning  and  ability  of  that  distinguished  jurist." 

11  Catron  wrote  it.  Wayne  and  McLean  dissented.  U.  S.  v.  Bank  of 
U.S.,    5  Howard  393. 

"  5  Howard  210. 
"  5  Howard  134. 
"  One  for  the  sale  of  slaves. 


ROGER  BROOKE  TANEY  275 

elusive,  in  all  cases,  upon  the  construction  of  their  own 
Constitution  and  laws.  But  we  ought  not  to  give  to 
them  a  retroactive  effect,  or  the  provision  which  secures 
to  a  citizen  of  one  State  a  right  to  sue  those  of  another 
might  become  utterly  useless."!^ 

In  Cook  V.  Moffatt,  he  filed  a  concurring  opinion  as 
to  the  interpretation  of  the  bankruptcy  clause  of  the 
Constitution,  stating  that  it  was  dangerous  to  infer  a 
power  in  the  United  States  government  merely  from  the 
general  powers  of  the  government  and  the  grant  to  it 
of  judicial  power. ^^ 

In  the  next  term,  Taney  delivered  no  important 
opinions!^   but,   at    the    term    covering  the  winter  of 

"Minor  decisions  at  this  term  were:  (1)  procedure  on  writs  of  Error, 
Pepper  v.  Dunlap,  5  Howard  51;  Barry  v.  Mercein,  5  Howard  117;  Mayberry  v. 
Thompson,  5  Howard  121;  Miner's  Bank  v.  U.  S.,  5  Howard  213;  (2)  pro- 
cedure in  Appeal,  U.  S.  v.  Briggs,  5  Howard  208;  (3)  Pleading  (Corporation  may 
refer  cause  to  arbitrators),  Alexandria  Canal  Co.  v.  Swann,  5  Howard  83; 
(4)  Protested  bill,  Hildeburn  v.  Turner,  5  Howard  69;  (5)  Patent  (too  vague 
composition),  Wood  v.  Underbill    5  Howard  1. 

"  Cook  V.  Moffat,  5  Howard  295, 1847.  Insolvent  laws,  Tyler,  285.  Biddle, 
Const.  Hist.,  164,  calls  Taney's  views  "obviously  correct." 

1^  Minor  opinions  are  upon  procedure.  (1)  writ  of  error.  Van  Ness  v. 
Van  Ness,  6  Howard  62;  and  Nesmith  v.  Sheldon,  6  Howard  41;  (2)  Villalobos 
v.  U.  S.,  6  Howard  81  (land  claims  in  Florida) ;  (3)  De  Armas's  Heirs  v.  U.  S., 
6  Howard,  103  (Spanish  land  title  in  Florida) ;  (4)  U.  S.  v.  Curey,  6  Howard, 
106  (procedure  in  Appeal);  (5)  Perkins  v.  Fonwright,  6  Howard,  206  (Final 
decree);  (6)  Forgav  v.  Conrad,  6  Howard  201  (Defendants  in  Equity  case 
whose  interests  are  separate  may  appeal  separately;  (7)  Bank  of  Metropolis 
v.  N.  E.  Bank,  6  Howard  212  (Explains  1  Howard  234);  (8)  Bein  v.  Heath, 
6  Howard  228  (Dissents,  no  opinion.  Husband  suing  for  wife  in  equity); 
(9)  Planter's  Bank  v.  Sharp,  6  Howard  301  (Dissents,  no  opinion.  Obligation 
in  law  of  contract  prohibiting  a  bank  from  transferring  by  endorsement  any 
note);  (10)  Hogg  v.  Emerson,  6  Howard,  437  (Patent,  dissents,  no  opinion); 

(11)  Houston  V.  City  Bank  of  New  Orleans,  6  Howard  486  (Bankrupt  act); 

(12)  U.  S.  V.  Yates,  6  Howard  605  (Dismissal  of  case  and  appearance  of  counsel) ; 

(13)  N.  J.  Steam  Nav.  Co.  v.  Merchant's  Bank  of  Boston,  6  Howard  344 
(Concurs   with   majority.    Express   between   New   York   and   Providence); 

(14)  Sims  V.  Hundley,  6  Howard  1,  (Groves  v.  Slaughter  to  be  folio  wed — notes 
given  in  payment  for  slaves — Rules  of  evidence  prescribed  by  State  law  to  be 


276  ROGER  BROOKE  TANEY 

1848-1849,  we  find  one  of  the  most  important  decisions 
from  his  hand.^^  On  the  face  of  the  action,  it  was 
simply  one  for  breaking  and  entering  a  house;  but  the 
whole  question  of  the  so-called  Dorr  rebellion  in  Rhode 
Island  against  the  old  Colonial  Charter  was  involved. 
Martin  Luther  sued  Luther  M.  Borden,  who  justified 
himself  on  the  ground  that  large  bodies  of  men  assem- 
bled in  different  parts  of  the  State  for  the  purpose  of 
overthrowing  the  government  by  military  force  and 
were  levying  war  on  the  State.  The  State  had  been 
declared  under  martial  law,  in  consequence  of  this,  by 
the  Governor  under  the  charter.  Luther  was  one  of  the 
insurrectionists,  whom  Dorr  had  arrested,  and  Borden 
was  a  military  officer,  who,  in  obedience  to  the  command 
of  his  superior  ofBcer,  broke  into  Luther's  house  to 
search  for  and  arrest  him.  Luther  replied  to  Borden's 
justification  that  he  was  guilty  of  trespass  of  his  own 
proper  wrong.  Taney  approached  this  important  issue 
with  caution.  The  Constitution  of  the  United  States, 
**as  far  as  it  has  provided  for  an  emergency  of  this  kind 
and  has  authorized  the  general  government  to  interfere 
in  the  domestic  concerns  of  a  State,  has  treated  the 
subject  as  political  in  its  nature  and  placed  the  power 
in  the  hands  of  that  department"  of  the  government. 
"A  republican  form  of  government"  had  been  guaran- 
teed to  each  State.     Under  this  guarantee 

It  rests  with  Congress  to  decide  what  government  is  the  estab- 
lished one  in  a  State.  For,  as  the  United  States  guarantees  to  each 
State  a  republican  government,  Congress  must  necessarily  decide 

followed  by  United  States  Circuit  Courts  sitting  in  these  States);  (15)    Gwin 
V.  Yerger,  6  Howard  7  (A'  state  law  providing  for  summary  process  against  a 
Sheriff  for  the  recovery  of  money  levied  by  him,  may  be  adopted  by  a  Circuit 
Court,  as  to  its  marshal,  but  not  as  to  his  sureties) . 
18  Luther  v.  Borden,  7  Howard  1,  Tyler  301. 


ROGER  BROOKE  TANEY  277 

what  government  is  established  in  the  State,  before  it  can  deter- 
mine whether  it  is  republican  or  not.  And  when  the  Senators  and 
Representatives  of  a  State  are  admitted  into  the  councils  of  the 
Union,  the  authority  of  the  government,  under  which  they  are 
appointed,  as  well  as  its  republican  character,  is  recognized  by  the 
proper  constitutional  authority.  And  its  decision  is  binding  on 
every  other  department  of  the  government,  and  could  not  be 
questioned  in  a  judicial  tribunal. 

The  dispute  occurred  in  Rhode  Island  in  1842  and 
did  not  last  long  enough  to  bring  the  question  to  an 
issue  then,  but  "the  right  to  decide  is  placed"  in  Con- 
gress and  "not  in  the  Courts. "  It  rested  with  Congress 
to  determine  upon  the  means  proper  to  be  adopted  to 
quell  domestic  violence  and  so  to  fulfil  this  guarantee. 
Congress  might,  if  they  had  deemed  it  most  advisable 
to  do  so,  have  placed  it  in  the  power  of  a  Court  to  decide 
when  the  contingency  had  happened,  which  required 
the  Federal  government  to  interfere;  but  Congress 
had^^  vested  "the  power  of  deciding  whether  the  exigency 
had  arisen,  upon  which  the  government  of  the  United 
States  is  bound  to  interfere,"  in  the  President.  An 
"armed  conflict"  is  clearly  a  case  of  "domestic  violence" 
and  "one  of  the  parties  must  be  in  insurrection  against 
the  lawful  government.  And  the  President  must,  of 
necessity,  decide  which  is  the  government  and  which 
party  is  unlawfully  arrayed  against  it,  before  he  can 
perform  the  duty  imposed  upon  him  by  the  Act  of 
Congress."  The  Court  may  not  inquire  during  nor 
after  the  insurrection  as  to  whether  the  President's 
decision  is  right.  The  President,  on  the  application  of 
the  Governor  claiming  under  the  charter,  recognized 
him  as  the  executive  power  of  the  State  and  was  ready 
to  call  out  the  militia.     A  knowledge  of  this  decision 

»  By  the  Act  of  February  28, 1795. 


x^ 


278  ROGER  BROOKE  TANEY 

put  an  end  to  the  armed  opposition  and  was  ''as 
effectual,  as  if  the  militia  had  been  assembled  under  his 
orders."     Taney  continued: 

It  is  said  that  this  power  in  the  President  is  dangerous  to  liberty 
and  may  be  abused.  All  power  may  be  abused,  if  placed  in  un- 
worthy hands.  But  it  would  be  difficult,  we  think,  to  point  out 
any  other  hands,  in  which  this  power  would  be  more  safe  and,  at 
the  same  time,  equally  effectual.  When  citizens  of  the  same 
State  are  in  arms  against  each  other,  and  the  constituted  authori- 
ties are  unable  to  execute  the  laws,  the  interposition  of  the  United 
States  must  be  prompt,  or  it  is  of  little  value.  The  ordinary 
course  of  proceedings  in  courts  of  justice  would  be  utterly  unfit  for 
the  crisis.  And  the  elevated  office  of  the  President,  chosen  as  he  is 
by  the  people  of  the  United  States,  and  the  high  responsibility  he 
could  not  fail  to  feel,  when  acting  in  a  case  of  so  much  moment, 
appear  to  furnish  as  strong  safeguards  against  a  wilful  abuse  of 
power,  as  human  precedence  and  foresight  could  well  provide. 

Taney  recognized  that  "the  President,  in  exercising 
this  power,"  might  "fall  into  error,  or  invade  the  rights 
of  the  people  of  the  State"  "and  believed  that  it  would 
then  be  in  the  power  of  Congress,  to  apply  the  proper 
remedy.  But  the  courts  must  administer  the  law,  as 
they  find  it." 

The  high  power  has  been  conferred  upon  this  Court,  of  passing 
judgment  upon  the  acts  of  the  State  sovereignties  and  of  the 
legislative  and  executive  branches  of  the  Federal  government  and 
of  determining  whether  they  are  beyond  the  limits  of  power 
marked  out  for  them  respectively  by  the  Constitution  of  the 
United  States.  This  tribunal,  therefore,  should  be  the  last  to 
overstep  the  boundaries  which  limit  its  own  jurisdiction.  And 
while  it  should  always  be  ready  to  meet  any  question  confided  to  it 
by  the  Constitution,  it  is  equally  its  duty  not  to  pass  beyond  its 
appropriate  sphere  of  action  and  to  take  care  not  to  involve  itself  in 
discussions  which  properly  belong  to  other  forums.     No  one,  we 


ROGER  BROOKE  TANEY  279 

believe,  has  ever  doubted  the  proposition  that,  according  to  the 
institutions  of  the  country,  the  sovereignty  in  every  State  resides 
in  the  people  of  the  State  and  that  they  may  alter  and  change  their 
form  of  government  at  their  own  pleasure.  But,  whether  they 
have  changed  it  or  not,  by  abolishing  an  old  government  and 
establishing  a  new  one  in  its  place,  is  a  question  to  be  settled 
by  the  political  power. 

And  when  that  power  has  decided,  "the  courts  are 
bound  to  take  notice  of  its  decision  and  to  follow  it." 

In  the  days  of  reconstruction  of  the  seceded  States  of 
the  South,  the  question  involved  in  this  case  gave  rise 
to  the  dispute  between  the  Presidential  plan  of  recon- 
struction, advocated  by  Presidents  Lincoln  and  Johnson 
and  the  Congressional  plan  of  reconstruction,  as  em- 
bodied in  the  Davis-Wade  bill  and  in  the  measures 
promoted  by  Charles  Sumner  and  Thaddeus  Stevens. 
The  Supreme  Court  did  not  pass  upon  the  subject,  in  its 
fullness,  at  the  time,^^  but  in  a  recent  decision  has  firmly 
placed  itself  on  the  ground  of  Taney's  decision  in  Luther 
V.  Borden  and  has  said  that  it  is  a  legislative  duty  to 
determine  the  political  questions  involved  in  deciding 
whether  a  State  government  republican  in  form  exists.^i 

At  this  term,  also  were  decided  that  group  of  actions 
commonly  known  as  the  Passenger  Cases.22  The  Court 
w^as  sadly  divided. ^^ 

2  0  See  Texas  v.  White.    7  Wall  780. 

21  Kernan  v.  City  of  Portland,  223  U.  S.  Reports,  118  at  151.  See  Steiner's 
Life  of  Henry  Winter  Davis,  p.  286. 

22  Tyler,  p.  299.  Smith  v.  Turner,  etc.,  7  Howard  283.  Taney's  dissent 
extends  from  464  to  494.  Mickell,  as  usual,  takes  an  enthusiastically  favorable 
view  of  the  opinion,  and  ("4  Gt.  Am.  Lawyers,"  p.  139)  speaks  of  it  as  "unsur- 
passed for  closeness  of  reasoning  and  nicety  of  discrimination  between  the 
relative  power  of  State  and  Federal  Governments." 

23  A  reviewer  of  Carson's  "Supreme  Court"  in  the  Nation  for  April  7,  1892, 
at  p.  269,  speaks  of  "this  lamentable,  if  not  shameful,  exhibition  of  judicial 
discord;"  but  he  is  an  unfriendly  critic,  for  he  characterizes  this  whole  period 


280  ROGER  BROOKE  TANEY 

The  States  of  New  York  and  Massachusetts  had 
passed  laws,  requiring  a  master  of  a  vessel  engaged  in 
foreign  commerce  to  pay  a  certain  sum  to  a  State 
officer  for  each  passenger  brought  in  from  a  foreign 
country  and  the  Court's  decision  was  to  the  effect  that 
the  law  was  inoperative,  because  it  conflicted  with  the 
Constitution. 

Taney  dissented  from  this  judgment.  His  view  is 
far  narrower  than  that  of  later  legal  opinion  and  shows 
that  he  had  not  yet  outgrown  his  strict  construction  of 
the  commerce  clause,  gained  when  he  was  counsel  in 
Brown  v.  Maryland.  He  thought  no  argument  was 
needed  to  "show  that  the  power  over  the  intercourse  of 
persons  passing  from  one  State  to  another  is  not  with 
Congress"  and,  if  Congress  had  not  that  power,  neither 
had  it  the  power  over  passengers  from  foreign  countries. 
Federal  power  over  intercourse  with  foreign  countries 
was,  exclusively,  with  their  governments  and  public 
authorities,  and  had  no  connection  with  private  persons. 
The  State  law  met  the  vessel  after  she  had  arrived  in 
the  harbor  and  within  the  territorial  limits  of  the  State; 
but  while  the  passengers  were  still  afloat,  in  navigable 
water.  The  Statute  of  Massachusetts  was  a  part  of  the 
pauper  laws  of  the  State  and  the  payments  were  placed 
in  a  fund  to  support  alien  paupers.  The  payment  was 
"the  condition,  upon  which  the  State  permits  the  alien 
passengers  to  come  on  shore  and  mingle  with  its  citizens 
and  reside  among  them."  The  money  was  demanded  of 
the  Captain,  for  the  sake  of  convenience,  but  the  burden 
really  fell  on  the  passenger,  who  paid  more  for  the  voyage 

as  one,  in  which  the  judges  were  "struggling  awkwardly"  to  reconcile  the  "new 
perceptions  that  the  Constitutional  canons  of  construction  established  before 
1835  were  vitally  essential  to  the  preservation  of  national  authority"  with 
"their  earlier  political  training  upon  State's  rights  and  strict  construction" — a 
reconciliation  surely  not  necessary  for  such  a  Federalist  as  Taney. 


ROGER  BROOKE  TANEY  281 

because  of  this  tax.  By  no  treaty  or  act,  has  Congress 
"required  the  States  to  receive  and  suffer  to  remain" 
within  their  borders  every  person,  "  whom  it  may  be  the 
pleasure  of  the  United  States  to  admit."  It  is  a  funda- 
mental question,  whether  Congress  may  lawfully  ex- 
ercise such  power,  or  whether  the  Court  must  treat  any 
such  act  as  an  usurpation  of  power  and,  neither  recognize, 
nor  enforce  it.  The  Court  had  decided^^  that  a  State 
may  remove  from  among  its  citizens  any  persons  it 
wishes.  If  so,  it  follows  that  it  may  refuse  them 
entrance — it  would  be  useless  to  admit  them  and  then 
expel  them  forthwith.  The  power  cannot,  to  Taney's 
mind,  be  a  concurrent  one;  but  must  be  exclusive — 
"paramount  and  absolute  in  the  sovereignty  which 
possesses  it" — or  "disorder  and  confusion"  would 
result.  The  power  must  be  discretionary,  and  the 
necessity  of  the  law  is  not  before  the  Court,  though  it 
would  be  easy  to  show  from  history  that  Massachusetts 
is  wise  in  taking  steps  against  pauper  immigrants.  If 
the  State  has  the  right  to  admit  persons,  the  Court 
cannot  supervise  the  placing  "such  securities  and  con- 
ditions," as  the  State  saw  fit,  upon  that  admission.  As 
Congress  has  passed  no  Act,  does  that  silence,  following 
the  decision  in  the  License  Cases,  mean  that  there  may 
be  free  ingress  of  persons?  This  is  not  a  regulation  of 
vessels.  Massachusetts  asked  a  security  from  one  class 
of  aliens  and  took  a  sum  of  money  from  those  less 
chargeable.  Taney  did  not  believe  that  "the  over- 
whelming power"  of  deciding  who  should  be  permitted 
to  reside  in  a  State  was  vested  in  Congress.  He  could 
not  keep  slavery  out  of  the  discussion  and  pointed  out 
that,  under  such  a  power,  emancipated  slaves  from  the 
West  Indies  might  be  granted  the  right  to  reside  through- 

2^  Groves  v.  Slaughter,  15  Peters  449;  Prigg  v.  Pa.,l6  Pet.  539 


282  ROGER  BROOKE  TANEY 

out  the  Southern  States,  in  spite  of  any  State  law,  thus 
inevitably  producing  the  most  serious  discontent  and, 
ultimately  leading  to  the  most  painful  consequences. 
The  power  to  prohibit  the  foreign  slave  trade  does  not 
carry  the  power  to  force  the  State  to  admit  any  one,  or 
the  State  would  be  subject,  as  to  "its  domestic  concerns 
and  social  relations,  to  the  power  of  the  Federal 
government." 

Passengers  are  not  imports, ^^  for  that  word  covers 
only  articles  of  property.  The  clauses  in  the  Constitu- 
tion granting  Congress  the  powers  to  tax  and  to  regulate 
commerce  are  distinct  and  separately  placed.  This 
levy  is  not  a  tax  on  the  Captain,  any  more  than  import 
duties  on  merchandise  in  his  vessel  are.  Taney  feared 
that  the  regulation  of  commerce  might  be  so  used  as  to 
impair  the  taxing  power  of  the  State.  The  New  York 
law  was  intended  to  pay  for  inspection,  so  as  to  prevent 
the  introduction  of  contagious  diseases  into  the  State 
and,  consequently,  took  on  the  same  footing  as  quaran- 
tine laws.  The  Captain  and  the  passengers  were  trans- 
ferred from  the  jurisdiction  of  the  General  Government 
to  that  of  the  State  upon  the  vessel's  entry  at  the  Custom 
House. 

Taney  concluded  his  opinion  with  a  sentiment  ac- 
cepted by  the  Court  in  later  decisions^^  that  every  citizen 
is  entitled  to  free  access,  not  only  to  the  Federal  depart- 
ments at  Washington,  but  also  to  its  judicial  tribunals 
and  public  offices  in  every  State  and  Territory  of  the 
Union.  ''We  are  all  citizens  of  the  United  States  and, 
as  members  of  the  same  community,  must  have  the 
right  to  pass  and  repass  through  every  part  of  it,  without 
interruption,  as  freely  as  in  our  own  States."  These 
are  the  words  of  a  Federalist,  not  of  a  States  rights  man. 

26  Vide  N.  Y.  v.  Miln,  11  Peters  103. 
26  CrandaU  v.  Nevada,  6  Wall  35 


ROGER  BROOKE  TANEY  283 

Taney  delivered  only  two  other  opinions  of  moment 
at  this  term  of  Court. ^^  He  held  that  the  Federal 
Courts  have  no  jurisdiction  in  admiralty  of  a  libel  by 
owners  of  a  vessel  against  a  consignee  of  a  cargo,  to 
recover  a  contributory  share  due  in  general  average 
on  account  of  cargo,  which  the  master  had  delivered 
to  such  consignee.     Taney  said: 

It  is  much  to  be  regretted  that  the  jurisdiction  of  the  Court  of 
Admiralty  in  this  country  is  not  more  clearly  defined.  It  has 
been  repeatedly  decided  in  this  Court  that  its  jurisdiction  is  not 
restricted  to  the  subjects  over  which  the  English  courts  of  Ad- 
miralty exercised  jurisdiction  at  the  time  our  constitution  was 
adopted.  But  this  case  is,  in  its  principles,  nothing  more  than  the 
Common  Law  action  for  money  had  and  received,  brought  in 
Admiralty.^^ 

In  a  later  most  important  decision^^  Taney  was 
destined  to  do  much  towards  the  definition  of  the 
admiralty  jurisdiction. 

In  the  other  opinion,  from  which  four  justices  dis- 
sented,^*^ the  Court  held  that,  in  Louisiana,  where  the 

2' Minor  opinions  are:  (l)  Matheson  v.  Bank  of  Ala.  (writ  of  error);  (2) 
Townsend  v.  Jennison,  7  Howard  706  (Taney  dissents  from  argument, 
agrees  with  conclusion);  (3)  Hardeman  v.  Harris,  7  Howard  726  (It  is  not 
a  material  exception  to  an  answer  to  an  equity  bill,  that  it  is  silent  con- 
cerning an  immaterial  fact,  which,  if  admitted,  could  not  tend  to  support  the 
complainant's  equity) ;  (4)  Udell  v.  Davidson,  7  Howard  769  (Defence  founded 
on  an  allegation  that  the  defendant's  conduct  was  in  fraud  of  an  act  of  Congress 
is  not  matter  which  the  Court  can  re-examine  at  his  instance  on  a  writ  of 
error);  (5)  Neilson  v.  Lagow,  7  Howard  772  (jurisdiction);  (6)  Lewis  v. Lewis, 
7  Howard  776  (Statute  of  Limitations  in  Illinois) ;  (7)  Van  Rensselaer  v.  Watt, 
7  Howard  784  (Practice) ;  (8)  Nesmith  v.  Sheldon,  7  Howard  812.  The  Supreme 
Court  of  Michigan  having  settled  a  question  as  to  the  constitutionality  of  a 
law  of  that  State,  the  Supreme  Court  follows  that  decision.  See  the  Dred 
Scott  Case.     Rowan  v.  Runnels,  5  Howard  134  contra. 

28  Cutler  V.  Rae,  7  Howard  729  at  732. 

29  That  of  the  Genesee  Chief. 
•0  U.  S.  V.  Coxe,  7  Howard  S33. 


284  ROGER  BROOKE  TANEY 

judge  passes  both  upon  questions  of  fact  and  upon  those 
of  law,  if  a  jury  trial  is  not  claimed,  the  proper  practice 
is  for  the  judge  to  insert  in  the  records  the  facts  found 
by  him.  The  Supreme  Court,  on  a  writ  of  error,  must 
then  treat  such  facts  as  conclusively  settled  and  consider 
the  law  arising  therefrom  as  stated  in  the  case.^^ 

With  this  year's  work,  half  of  Taney's  judicial  career 
concluded.  Carson,  after  a  careful  study  of  the  Supreme 
Court  Reports,  wrote  that  Taney  most  frequently  was 
in  agreement  with  Nelson  and  Campbell  and  that  the 
association  of  these  three  justices  had  succeeded  to 
the  earlier  one  of  Marshall,  Washington  and  Story.^^ 
Woodbury  and  Daniel  were,  in  the  main,  in  accordance 
with  Taney,  but  broke  with  him  in  the  development  of 
the  admiralty  jurisdiction.  McLean  and  Wayne  were 
the  ''high  toned  Federalists"  on  the  Bench,  as  Curtis 
called  them,  and  Catron,  Grier,  and  McKinley  had 
similar  tendencies,  but  less  pronounced.  During  this 
general  period,  a  number  of  changes  had  taken  place  in 
the  membership  of  the  Court.  Thompson  had  died  in 
1843  and  had  been  succeeeded  by  Nelson.  Woodbury 
succeeded  Story  in  1845  and  was  succeeded  by  Curtis  in 
1851.  Grier  succeeded  Baldwin  in  1844  and  Campbell 
took  McKinley's  place  in  1852. 

x\t  the  December  term  of  1849,  Taney  was  the  author 
of  several  important  opinions.^^     In  Perrine  v.  Chesa- 

^^  Agreement  made  in  1795  between  the  Spanish  government  and  the 
Marquis  de  Maison  Rouge,  for  the  transportation  of  families  into  the  Province, 
was  held  not  to  constitute  a  contract. 

*2  Supreme  Court. 

•^  These  are  all  contained  in  9  Howard.  The  opinions  in  8  Howard  are  not 
of  great  moment,  viz:  (1)  U.  S.  v.  Carr,  8  Howard  1  (The  Act  of  1793  does  not 
cause  the  forfeiture  of  goods  for  the  neglect  of  a  master  of  a  vessel  to  insert  in 
the  manifest  a  particular  description  of  articles  of  foreign  manufacture  required 
by  that  act.  If  the  master  delivers  to  the  collector  a  manifest,  certified  by  the 
collector  at  the  port  of  departure,  and  it  actually  contains  mention  of  the  goods, 


ROGER  BROOKE  TANEY  285 

peake  and  Delaware  Canal  Company^^  the  Court  held 
that  a  corporation  can  exercise  no  powers,  save  those 
expressly  conferred  upon  it,  or  those  which  are  incident 
to  its  existence  and,  therefore,  a  canal  corporation,  not 
empowered  by  its  charter  to  exact  tolls  from  passengers, 
may  not  exact  such  tolls  from  vessels,  by  reason  of  their 
carrying  passengers.  *'A  charter  is  to  be  fairly  ex- 
amined, and  reasonably  and  justly  expounded,  and  not 
to  receive  a  strained  interpretation;  but,  when  thus 
examined,  if  its  terms  fairly  admit  of  doubt  as  to  whether 
any  power  burdensome  to  the  public  has  been  granted 
it,"  this  power  may  not  be  exercised.  In  these  sen- 
tences, we  hear  the  voice  of  the  author  of  the  decision 
in  the  Charles  River  Bridge  Case.  The  canal  was 
originally  planned  to  open  the  trade  of  the  Chesapeake 
Bay  to  Philadelphia.  Baltimore  interests  were,  there- 
fore, naturally  adverse  to  the  project;  but  they  wished 

though  imperfectly  described,  there  will  be  no  forfeiture.) ;  (2)  U.  S.  v.  Boisdores 
Heirs,  8  Howard  1 13  (Land  claims  in  Mississippi — expounding  words  of  Statute) ; 
(3)  Bennett  v.  Butterworth,  8  Howard  124  (Jurisdiction) ;  (4)  Veazie  v.  Williams, 
8  Howard  134  (Fraudulent  action.  Dissents  with  two  others,  but  without 
opinion);  (5)  Maxwell  v.  Kennedy,  8  Howard  210  (Defendant  may  take 
advantage  by  demurrer  of  laches  appearing  on  the  face  of  the  bill.  A  judg- 
ment was  rendered  in  South  Carolina  in  1797,  and  a  bill  was  filed  in  Alabama 
in  1844,  in  a  suit  against  the  debtor's  children) ;  (6)  Wanzer,  v.  Tupper,  8  Howard 
234  (Bailey  v.  Dozier,  6  Howard  23,  affirmed);  (7)  Lord  v.  Veazie,  8  Howard  251 
(Court  below  heard  a  third  person,  not  a  party  to  the  suit,  upon  a  representa- 
tion that  the  parties  to  the  suit,  having  a  common  interest,  had  gotten  up  a 
feigned  suit  to  procure  an  opinion  of  the  court  on  questions  afifecting  the  peti- 
tioner, without  making  him  a  party.  On  writ  of  error,  the  lower  court  was 
sustained);  (8)  Wilson  v.  Barnum,  8  Howard  258  (Patent case-jurisdiction) ; 

(9)  Gibson  v  Stevens,  8  Howard  384  (Ownership  of  warehouse  certificates); 

(10)  Mayer  v.  Grima,  8  Howard  490  (Louisiana  law  imposing  a  tax  on  legacies 
payable  to  aliens  is  not  repugnant  to  United  States  Constitution);  (11)  William- 
son V.  Berry,  8  Howard  495  (Trust  bequest  in  N.  Y.  Dissents  with  two  others 
without  opinion.  Biddle  Const.  Hist.,  185,  says  the  dissent  "must  receive  the 
approval  of  every  constitutional  lawyer." 

2*  9  Howard  172. 


286  ROGER  BROOKE  TANEY 

access  to  the  Susquehanna  River,  which  was  encumbered 
with  rocks.  Pennsylvania  agreed  to  remove  these 
rocks,  if  Maryland  would  permit  the  canal  to  be  made, 
but  had  a  provision  inserted  in  the  Canal  company's 
charter,  that  it  should  derive  no  other  powers  but  those 
given  it  by  Maryland,  or  necessarily  incident  to  a  cor- 
portation.  Charters  were  obtained  from  Pennsylvania, 
Maryland,  and  Delaware.  Taney  stated  that,  if  the 
corporation  may  refuse  permission  to  vessels  to  pass 
through  its  canal,  the  line  of  intercourse  may  be  in- 
terrupted and  Pennsylvania  lose  her  purpose.  **Such 
an  unlimited  power  to  levy  contributions  on  the  public 
and  one  so  inconsistent  with  the  ordinary  course  of 
legislation  upon  that  subject,  and  we  may  add  so  unjust 
and  injurious  to  the  public,  ought  not  to  be  sustained  in 
a  court  of  justice,  unless  it  is  conferred  in  plain  and 
express  words." 

"In  Maryland^^  with  its  broad  bay,  its  great  numbers 
of  navigable  tidewater  rivers,  interrupting  travel  by 
land,  its  numerous  villages  and  towns  on  their  banks, 
and  its  commercial  metropolis,  seated  at  the  head  of 
the  bay,"  there  was  much  transportation  of  commerce 
on  the  water  and  many  legislators  had  to  pass  to  An- 
napolis by  boat.  The  legislature  acted  with  full  knowledge 
of  this  usage.  It  is  possible  that,  if  steam  navigation 
could  have  been  foreseen,  a  toll  on  passengers  might 
have  been  allowed;  "but  it  is  not  the  province  of  this 
Court  to  enlarge  the  powers  of  a  corporation  beyond  the 
limitations  of  its  charter,  because  circumstances  have 
changed.  Our  province  is  to  expound  the  law  as  it 
stands,  not  to  determine  whether  larger  powers  would 
not  have  been  given,  if  the  legislature  had  anticipated 
events  which  have  since  happened."     These  questions 

«  Page  188. 


ROGER  BROOKE  TANEY  287 

are  "emphatically  questions  between  the  rights  of  the 
public  and  the  powers  of  the  corporation."  Theopinion 
contains  a  clear  and  fine  statement  of  the  powers  of  the 
judiciary  and  the  rights  of  corporations. 

When  the  holder  of  a  bill,  in  Lambert  v.  Ghiselin,^^ 
inquired  of  a  person  trading  at  a  place,  if  he  knew  where 
the  endorser  resided,  he  was  told,  in  reply,  that  he  lived 
at  Nottingham  on  West  River,  the  place  where  the  one 
answering  traded.  The  holder  had  no  better  means  of 
knowledge  and  the  Court  held  that  he  had  used  due 
diligence  to  learn  the  place  of  abode  and  that  a  notice 
put  into  the  post  office  and  directed  to  the  endorser  at 
Nottingham  was  sufficient,  nor  was  the  holder  required 
to  give  further  notice,  even  though  he  should  afterwards 
discover  that  the  notice  was  wrongly  sent,  since  the  law 
does  not  require  actual  notice,  but  reasonable  diligence 
only  and  reasonable  efforts  made  in  good  faith,  to  give 
such  notice. 

In  another  case^^  the  Court  held  that  the  delivery  and 
title  of  certificates  of  money  due  at  the  Treasury  of  the 
United  States,  under  the  treaty  between  the  United 
States  and  Mexico,  were  good,  when  these  certificates 
bore  indorsement  in  blank  by  the  payee,  and  were 
acquired  in  good  faith  and  for  a  valuable  consideration 
by  the  defendant.  Although  these  certificates  were  not 
on  the  same  footing  as  negotiable  paper  by  the  law 
merchant,  yet  they  were  property,  transferable  by  such 
endorsement  and  delivery. 

A  more  important  case,  arising  out  of  the  Mexican 
war,  concerned  the  capture  and  occupation  of  Tampico 
by  the  United  States  forces  during  the  conflict.     The 

^  9  Howard  562.    The  only  minor  opinion  in  9  Howard  is  Goodtitle  v.  Kibbe 
at  p.  471  concerning  a  Spanish  land  grant  in  Alabama. 
«7  Baldwin  v.  Ely,  9  Howard  580. 


288  ROGER  BROOKE  TANEY 

occupation  was  sufficients^  to  cause  the  place  to  be  re- 
garded by  other  nations  as  part  of  our  territory,  but 
that  fact  did  not  make  it  a  part  of  the  United  States  under 
the  Constitution  and  laws.  Under  the  revenue  laws, 
Tampico  remained  a  foreign  country  and  goods  sent 
thence  to  Philadelphia  were  subject  to  duty,  although 
the  "country  was  in  the  exclusive  and  firm  possession 
of  the  United  States. "     Taney's  opinion  continued  thus : 

The  genius  and  character  of  our  institutions  are  peaceful  and  the 
power  to  declare  war  was  not  conferred  on  Congress  for  the  pur- 
poses of  aggression  or  aggrandizement;  but  to  enable  the  general 
government  to  vindicate  by  arms;  if  it  should  become  necessary, 
its  own  rights  and  the  rights  of  its  country.  A  war,  therefore, 
declared  by  Congress,  can  never  be  presumed  to  be  waged  for  the 
purpose  of  conquest,  or  the  acquisition  of  territory,  nor  does  the  law 
declaring  the  war  imply  an  authority  to  the  President  to  enlarge 
the  limits  of  the  United  States  by  subjugating  the  enemy's  country. 

This  can  be  done  only  by  the  treaty  making  power,  or 

the  legislative  authority,  and  is  not  a  part  of  the  power  conferred 
upon  the  President  by  the  declaration  of  war.  His  duty  and  power 
are  purely  military.  As  commander-in-chief,  he  is  authorized  to 
direct  the  movements  of  the  naval  and  military  forces  placed  by 
law  at  his  command  and  to  employ  them,  in  the  manner  he  may 
deem  most  effectual,  to  harass,  and  conquer,  and  subdue  the 
enemy.  He  may  invade  the  hostile  country  and  subject  it  to  the 
sovereignty  and  authority  of  the  United  States.  But  his  con- 
quests do  not  enlarge  the  boundaries  of  this  Union,  nor  extend  the 
operation  of  our  institutions  and  laws  beyond  the  limits  before 
assigned  to  them  by  the  legislative  power.^*^ 

This  discussion  of  international  law  in  time  of  war  is 
lucid  and  comprehensive.  "By  the  laws  and  usages 
of  nations,  conquest  is  a  valid  title,  while  the  victor 

»8  Fleming  v.  Page,  9  Howard  603. 
89  Page  614. 


ROGER  BROOKE  TANEY  289 

maintains  the   exclusive   possession  of   the   conquered 

country As    regards    all    other    nations," 

Tampico  'Svas  a  part  of  the  United  States  and  belonged 
to  them,  as  exclusively  as  the  territory  included  in  our 
established  boundaries.     But  yet  it  was  not  a  part  of 

the  Union The  inhabitants  were  still  foes  and 

enemies  and  owed  to  the  United  States  nothing  more 
than  the  submission  and  obedience,  sometimes  called 
temporary  allegiance,  which  is  due  from  a  conquered 
enemy,  when  he  surrenders  to  a  force  which  he  is  unable 
to  resist."  Even  the  custom  house  at  Tampico  was 
not  "established  to  give  the  people  of  the  State  of 
Tamaulipas  the  benefits  of  commerce ;  but,  as  a  measure 
of  hostility,  it  was  a  mode  of  exacting  contributions  from 
the  enemy."  Every  port  is  a  foreign  one,  unless  its 
custom  house  is  within  a  collection  district  established 
by  Congress  and  the  officers  granting  clearance  from  the 
port  exercise  their  functions  under  the  authority  of  the 
laws  of  the  United  States.  At  the  treaty  of  peace, 
Tampico  was  returned  to  Mexico,  so  that  Taney  thus 
sums  up  the  matter: 

The  sovereignty  of  the  United  States  resides  in  the  people  of  the 
several  States  and  they  act  through  their  representatives,  according 
to  the  delegation  and  distribution  of  powers  contained  in  the  Con- 
stitution. And  the  constituted  authorities,  to  whom  the  power 
of  making  war  and  concluding  peace  is  confided,  and  of  deter- 
mining whether  a  conquered  country  shall  be  permanently  re- 
tained or  not,  neither  claimed,  nor  exercised  any  rights  or  powers  in 
relation  to  the  territory  in  question,  but  the  rights  of  war. 

The  case  of  the  Kentucky  minstrels — Strader  v.  Gra- 
ham, ^^  brought  a  slavery  question  before  the  Court, 
namely :  whether  slaves  held  in  Kentucky  were  emanci- 

io  10  Howard  82. 


290  ROGER  BROOKE  TANEY 

pated,  by  going  over  into  Ohio  with  the  permission  of 
their  master.  Graham  had  sent  three  of  his  slaves 
across  the  Ohio  River  into  the  State  of  that  name  to 
play  as  musicians  at  entertainments.  For  two  years, 
however,  they  had  not  left  Kentucky,  until  one  day 
they  were  received  on  board  a  steamboat,  at  Louis- 
ville, without  their  master's  knowledge  and  were  taken 
to  Cincinnati,  whence  they  escaped  to  Canada.  Graham 
then  brought  suit  against  the  owners  of  the  steam 
boat,  who  averred  that  the  negroes  were  freemen.  The 
Kentucky  court  decided  in  favor  of  Graham,  and 
upon  an  appeal  the  Supreme  Court  sustained  the  judg- 
ment, upon  the  ground  that  the  question  as  to  whether 
employment  of  slaves  in  a  free  State  should  free  them 
upon  their  return  home,  was  purely  one  of  local  law, 
over  which  the  United  States  Court  could  not  take 
jurisdiction. 

The  North  West  Ordinance  of  1787  and  its  effect  were 
considered  in  the  opinion.  That  instrument  could  not 
restrict  the  power  of  the  States  within  their  territories; 
but  Taney  maintained  that,  in  any  case,^^  it  had  been 
settled  that  the  Ordinance  was  no  longer  in  force  in 
Ohio,  or  in  any  other  State,  or  these  States  would  be 
placed  in  an  inferior  condition,  as  compared  with  States 
not  within  the  territory  covered  by  that  Ordinance. 
Most  of  its  material  provisions  had  been  established  by 
law  and,  therefore,  the  Ordinance  is  often  said  to  be  in 
force.  What  was  really  the  case  was  that  the  Ordinance 
"ceased  to  be  in  force,  upon  the  adoption"  of  the  Con- 
stitution, and  the  provisions  which  were  in  force  were 
those  taken  from  the  Ordinance  and  enacted  on 
August  7,  1789,  by  Congress.     This  decision  disquieted 

*^  Perundi  v.  First  Municipality,  3  Howard  589. 


ROGER  BROOKE  TANEY  291 

the  abolitionists,  but  seems  not  to  have  excited  a  great 
deal  of  notice. 

About  the  same  time,  Taney  voiced  the  Court's 
decision  in  refusing  to  grant  an  exemption  from  taxation 
to  a  railroad  which  had  no  such  express  privilege  in  its 
charter^2  ^nd  in  a  Patent  Case^^  he  stated  that,  if  an 
article  were  known,  or  used,  in  a  foreign  country,  but 
had  not  been  previously  patented,  or  described,  in  a 
printed  publication,  it  may  be  patented  in  the  United 
States.  The  patentee  "would  discover  what  is  unknown 
and  communicate  the  knowledge  which  the  public  had 
not  the  means  of  obtaining,  without  his  invention."^'* 

Later  in  the  term,  Taney  spoke  for  the  Court,  in 
holding^^  that  a  neutral,  having  resided  in  an  enemy's 
country,  resumes  his  neutral  character,  as  soon  as  he 
puts  himself  and  his  family  in  itinere,  to  return  home  to 
reside,  and  that  he  has  a  right  to  take  with  him  the  means 
of  support  of  himself  and  his  family  in  specie.  Such 
property  is  not  forfeited  by  a  breach  of  blockade  by  the 
vessel,  on  board  of  which  he  has  taken  passage,  if  he, 
personally,  is  in  no  fault.  The  defendant,  a  Frenchman 
domiciled  in  Mexico,  had  sailed  from  Vera  Cruz  to 
Havana,  taking  his  earnings  with  him,  with  the  intent 
to  return  to  France. ^^ 

«  p.  &  W.  R.  R.  Co.  V.  Md.,  10  Howard  376.  Consolidation  of  Balto.  & 
Port  Deposit  Railroad  with  two  others. 

«  Gayler  v.  Wilder,  10  Howard  477. 

4^  Minor  opinions  are:  (1)  Wilson  v.  Sanford,  10  Howard  99  (Procedure 
under  the  patent  act),  (2)  Rhodes  v.  Galveston  Str.,  10  Howard  144, (Pro- 
cedure), (3)  Sears  v.  Eastburn,  10  Howard  187  (Trespass  in  Ala.  Practice), 
(4)  Henderson  v.  Tennessee,  10  Howard  311  (Jurisdiction.    Land  Grants). 

«  U.  S.  V.  Guillem,  11  Howard  47. 

^  Minor  decisions  in  the  volume  are:  (1)  Grimes  v.  U.  S.,  11  Howard  163 
(amount  involved  in  an  appeal),  (2)  Hortsman  v.  Henshaw  11  Howard,  177. 
(If  the  drawer  of  a  bill  puts  it  in  circulation  with  forged  endorsement  upon  it  of 
the  name  of  the  payee  and  the  drawee  accepts  it  and  pays  the  money  to  a  bona 


292  ROGER  BROOKE  TANEY 

In  Bennett  v.  Butterworth^^  Taney  maintained  that 
in  Texas,  a  State  where  the  distinction  between  law  and 
equity  does  not  exist,  the  United  States  Court  sitting 
there  may  adopt  the  State  procedure  to  try  suits  at 
law,  but  that  equitable  rights  must  be  prosecuted  and 
tried,  according  to  the  rules  prescribed  by  the  Supreme 
Court  for  pleadings  and  practice  in  equity.  Here 
again,  a  slavery  question  appeared  and  the  Court  held 
that  a  verdict  in  a  suit  to  try  title  to  slaves,  which  merely 
found  for  the  plaintiff,  $1200,  or  the  value  of  four 
negroes,  would  not  warrant  a  judgment.  The  matter 
in  issue  was  negroes,  not  their  value. 

We  have  now  come  to  the  year  1851  and  to  the  great 
case  of  the  Genesee  Chief,  which  seems  to  me  Taney's 
most  important  contribution  to  jurisprudence.^^  In 
England,  only  tidal  rivers  had  been  navigable;  hence,  in 
English  Law,  the  Admiralty  Courts,  which  had  been 
given  jurisdiction  over  navigable  waters,  found  their 
jurisdiction  limited  to  places  which  felt  the  effect  of 
the  tides  of  the  sea.     In  the  United  States,  the  vast 

fide  holder  for  value,  he  cannot  recover  back  the  money  paid,  since  his  accep- 
tance is  a  conclusive  acknowledgment  that  he  has  funds  of  the  drawer.)  (3) 
Brooks  V.  Norris,  1 1  Howard  204.  (Limitations  Writ  of  Error.)  (4)  Hogan  v.  Ross 
11  Howard  294  (Writ  of  error.)  (5)  Moore  v.  Brown,  llHoward414  (Limitations 
on  land  title  in  Illinois.  Dissents.)  (6)  Gill  v.  Oliver,  11  Howard  529.  (In- 
solvency. Dissents  in  brief  opinion,  considering  that  the  decision  of  the 
Maryland  court  from  which  appeal  was  taken  should  be  reversed.)  (7)  Hogg 
v.  Emerson,  11  Howard  587  (Patents, Dissents.  No  opinion.)  (8),U.  S.  v.Ferner, 
11  Howard  653  (Spanish  laws  prevailing  in  Louisiana  before  cession  and 
affecting  land  titles  therein  must  be  judicially  noticed  by  the  Court.  Their 
existence  is  not  matter  of  fact  for  a  jury.) 

« 11  Howard  669. 

*^  Propeller  Genesee  Chief  v.  Fitzhugh,  12  Howard  443.  Emerson  in  his 
essay  on  Power  in  a  volume  entitled  "Conduct  of  Life."  (a  volume  which  was 
copyrighted  in  1860,  but  contained  lectures  delivered  for  several  years  previous) 
thus  refers  to  this  decision:  "The  commerce  of  rivers,  the  commerce  of  rail- 
roads, and  who  knows  but  the  commerce  of  air  balloons,  must  add  an  American 
extension  to  the  pondbole  of  admiralty." 


ROGER  BROOKE  TANEY  293 

expanse  of  the  Great  Lakes  and  stretches  of  the  continen- 
tal rivers,  extending  for  hundreds  of  miles,  were  not 
tidal;  yet  upon  these  waters  large  vessels  could  move, 
with  burdens  of  passengers  and  cargo.  The  Supreme 
Court  decided,  and  Taney  expressed  its  opinion,  that 
the  admiralty  jurisdiction  of  the  United  States  Courts 
extends  to  waters  which  are  actually  navigable,  without 
regard  to  the  ebb  and  flow  of  ocean  tides.  It  was  an 
eminently  reasonable  decision.  The  rule  of  the  English 
law  was  rejected,  because  the  conditions  here  were  such 
that  it  was  inapplicable;  ratione  cessante,  res  ipsa  cessat, 
as  the  old  maxim  has  it.  Yet  it  was  a  bold  decision  to 
be  made  by  a  precedent-loving  court  and  it  was  one  of 
great  importance,  since  it  placed  the  inland  water- 
borne  commerce  of  the  whole  country  under  the  control 
of  uniform  Federal  laws  and  of  a  uniform  system  of 
Federal  courts.  This  was  a  great  nationalizing  decision 
and  was  worthy  of  Taney's  Federalistic  training.  In 
a  case  concerning  a  collision,  the  constitutionality  of 
an  Act  passed  by  Congress  in  1843  was  brought  into 
question  and  the  Court  upheld  the  law,  not  as  a  regula- 
tion of  commerce,  but  under  the  provision  of  the  United 
States  Constitution  that  the  judicial  power  of  the 
United  States  extends  to  admiralty  and  maritime 
jurisdiction.  Taney  was  a  great  admiralty  judge  and! 
his  opinions  in  cases  of  collisions  are  always  peculiarly 
satisfactory. 

The  collision  occurred  on  Lake  Ontario  in  May,  1847, 
and  the  propeller,  Genesee  Chief,  struck  and  sank  the 
schooner,  Cuba,  bound  from  Sandusky  to  Oswego. 
Taney  stated  that,  if  a  steamer  be  wrongfully  in  danger- 
ous proximity  to  a  sailing  vessel,  and  there  is  immediate 
and  pressing  danger  of  a  collision  and  the  master  of  the 
sailing  vessel,  previously  in  no  fault,  in  the  alarm  of 


294  ROGER  BROOKE  TANEY 

the  moment,  fails  to  give  a  proper  order,  this  did  not 
exempt  the  steamer  from  damages  for  the  ensuing 
collision.  When  a  steamer  had  not  a  proper  look-out 
in  the  night  time,  there  is  prima  facie  evidence  that  it 
was  at  fault  in  case  of  a  collision. 

The  case  derived  its  importance,  however,  not  so 
much  from  the  facts  of  the  collision,  as  because  the 
proceedings  were  instituted  under  a  Congressional  law 
which  was  brought  into  question  and  which  could  only 
be  used  in  these  circumstances,  if  the  admiralty  jurisdic- 
tion extended  to  the  great  freshwater  lakes.  Appreciat- 
ing the  importance  of  the  results  of  the  decision,  Taney 
approached  the  subject  with  caution.  Congress  could 
not  extend  the  admiralty  jurisdiction  under  the  power 
to    regulate    commerce,    for   the    powers    are   distinct. 

These  lakes,  are,  in  truth,  inland  seas.  Different  States  border 
on  them  on  one  side  and  a  foreign  nation  on  the  othei.  A  great 
and  growing  commerce  is  carried  on  upon  them  between  different 
States  and  a  foreign  nation,  which  is  subject  to  all  the  incidents  and 
hazards  which  attend  commerce  on  the  ocean.  Hostile  fleets 
have  been  encountered  on  them  and  prizes  have  been  made,  and 
every  reason,  which  existed  for  the  grant  of  admiralty  jurisdiction 
to  the  general  government  on  the  Atlantic  seas,  applies  with  equal 
force  to  the  lakes 

It  would  be  contrary  to  the  first  principles  on  which  the  Union 
was  formed,  to  confine  these  rights  to  the  States  bordering  upon 
the  Atlantic  and  to  their  tidewater  rivers  connected  with  it,  and 
to  deny  them  to  the  citizens  who  border  on  the  lakes  and  the 
great  navigable  streams  which  flow  through  the  Western  States. 

Such  a  construction,  certainly,  was  not  the  founders' 
intentions  and  to  accept  it,  would  fail  to  give  "perfect 
equality  in  the  rights  and  privileges  of  citizens,  not  only 
in  laws  but  in  ways  of  administering  them ;  for  the  com- 
merce on  the  lakes  and  the  navigable  waters  of  the  West 
will  be  denied  the  same  courts  and  the  same  jurisdiction 


ROGER  BROOKE  TANEY  295 

for  its  protection"  as  the  Constitution  secures  for  the 
Atlantic  States. 

The  only  objection  was  that  these  Western  waters 
have  no  ocean  tide;  but  there  is  "nothing  in  the  ebb  and 
flow  that  makes  waters  peculiarly  suitable  for  admiralty 
jurisdiction,  nor  anything  in  the  absence  of  a  tide" 
that  makes  them  unfit  for  such  jurisdiction.  The 
distinction  is  absolutely  arbitrary.  In  England,  the 
definition  is  sound;  for  no  stream  is  navigable  beyond 
tidewater  and  so  tidewater  and  navigable  water  are 
synonymous  terms.  At  the  time  when  the  Constitution 
was  adopted,  the  English  definition  was  equally  proper 
in  America.  "Until  the  discovery  of  steamboats,  there 
could  be  nothing  like  commerce,  upon  waters  with  an 
unchanging  current,  resisting  the  upward  passage." 
The  old  description  of  public  navigable  rivers  was  used 
after  it  had  ceased,  from  the  change  in  circumstances, 
to  be  a  true  description.  The  case  of  The  Thomas 
Jefferson,^^  in  which  the  old  definition  was  approved, 
embarrassed  the  Court.  But  Taney  hesitated  not  at  all 
to  break  the  rule  of  stare  decisis  and,  boldly,  said  that: 
"if  we  follow  it,  we  follow  an  erroneous  decision,  into 
which  the  Court  fell  when  the  great  importance  of  the 
question,  as  it  now  presents  itself,  could  not  be  foreseen, 
and  the  subject  did  not,  therefore,  receive  that  deliberate 
consideration  which,  at  this  time,  would  have  been 
given  to  it." 

That  decision  was  made  in  1825,  when  the  "commerce 
on  the  rivers  of  the  west  and  on  the  lakes  was  in  its 
infancy  and  of  little  importance,  and  but  little  regarded, 
compared  with  that"   of   1850.^^     If  the   tide   limited 

« 10  Wheaton  428. 

^°  The  case  of  The  Thomas  Jefferson  was  one  which  only  involved  questions 
of  jurisdiction  and  not  of  property,  so  that  no  contracts  were  disturbed  by 
disregarding  it.     The  Court's  opinion  was  rendered  by  Justice  Story. 


296  ROGER  BROOKE  TANEY 

the  admiralty  jurisdiction,  then  a  purely  arbitrary  line 
would  have  to  be  drawn  on  the  Mississippi  River.^^ 
"There  can  be  no  reason  for  admiralty  power  over  a 
public  tide  water,  which  does  not  apply  with  equal  force 
to  any  other  public  water  used  for  commercial  purposes 
and  for  trade.  The  lakes  and  the  waters  connecting 
them  are  undoubtedly  public  waters  and  we  think 
are  within  the  grant  of  admiralty  and  maritime 
jurisdiction." 

Taney  considered  that  the  judiciary  act  of  1789  had 
this  in  view,  in  speaking,  not  of  tidewater  but  of  ''waters 
which  are  navigable  from  the  sea  by  vessels  of  10  or 
more  tons  burden." 

Tyler's  eulogy^^  Qf  ^j^jg  decision  is  deserved  that  "it 
is  a  remarkable  instance  of  a  thoroughly  technical 
lawyer  realising  that  enlightened  jurisprudence  requires 
the  judge  to  adapt  our  borrowed  law  to  the  conditions 
of  our  own  country"  and  that  it  is  a  "signal  example  of 
impartial  judicial  wisdom.  "^^ 

Another  important  case  decided  by  Taney  in  1851 
was  Dinsman  v.  Wilkes^^  in  which  a  marine  brought 

"  Page  303. 

^2  Curiously  Taney's  ardent  eulogist,  Mikell,  4  Great  American  Lawyers 
144,  almost  alone  here  is  critical  and  states  that  Taney  had  first  "decided 
what  ought  to  be  the  law  and  then  had  written  his  opinions  to  justify  his 
conclusions."  Biddle,  Const.  Hist.,  p.  174,  speaks  of  Taney's  reasoning  in 
this  case,  as  "set  forth  so  clearly,  so  convincingly,  may  I  not  say  in  a  manner 
incapable  of  being  confuted." 

"  12  Howard  39. 

^*  Minor  decisions  in  the  volume  are:  (1)  Smith  v.  Clark,  12  Howard  13 
(practice)  (2)  Parks  v.  Turner.  12  Howard  39  (Statute  of  jeofailes  and  practice  of 
Circuit  Court  for  Louisiana)  (3)  Montault  v.  U.  S.,  12  Howard  47  (After  Feb- 
ruary 10,  1763,  the  date  of  the  treaty  of  Peace  between  Great  Britain  and 
France  by  which  territory  between  the  Mississippi  and  the  Perdido  Rivers  was 
ceded  to  the  former,  France  could  not  grant  lands  therein)  (4)  Grand  Gulf  R.  R. 
Co.  V.  Marshall,  12  Howard  165  (Procedure  in  writ  of  error)  (5)  Bein  v.  Heath, 
12  Howard,  168  (Injunction  bond  in  Louisiana  Equity  procedure)  (6)  U.  S^ 


ROGER  BROOKE  TANEY  297 

suit  for  trespass  against  the  commander  of  the  United 
States  exploring  expedition  because  of  punishment 
inflicted  for  refusing  to  do  duty  in  a  foreign  port,  on  the 
ground  that  the  time  of  his  enlistment  had  expired  and 
he  was  entitled  to  a  discharge.  The  case  was  felt  to 
be  one  of  "much  delicacy  and  importance  as  regards 
our  naval  service.  For  it  is  essential  to  its  security 
and  efficiency,  that  the  authority  and  command  confided 
to  the  officers,  when  it  has  been  exercised  from  proper 
motives,  should  be  firmly  supported  in  the  courts  of 
justice,  as  well  as  on  shipboard.  And  if  it  is  not,  the 
flag  of  the  United  States,  would  soon  be  dishonored  on 
every  sea.  But,  at  the  same  time,  it  must  be  borne  in 
mind  that  the  nation  would  be  equally  dishonored,  if 
it  permitted  the  humblest  individual  in  its  service,  to 
be  oppressed,  or  injured  by  his  commanding  officer, 
from  malice,  or  ill  will,  or  the  wantonness  of  power, 
without  giving  him  redress  in  the  courts  of  Justice." 
Wilkes  was  in  distant  seas  and  was  charged  with  a  high 
public  duty.  The  plaintiff  was  really  not  entitled  to  a 
discharge,  but  the  authority  to  determine  the  question 
for  the  time  being  lay  in  Wilkes's  hands.  He  might  err, 
but  his  decision  was  conclusive,  and  the  plaintiff's 
duty  was  to  submit.     The  belief  of  Dinsman  as  to  his 

V.  Wilkinson,  12  Howard  246  (Procedure,  a  copy  of  a  bond  duly  authenticated  is 
admissible  in  evidence)  (7)  Bond  v.  Brown,  12  Howard  254  (Ruling  of  Judge 
without  jury  in  Louisiana)  (8)  Saltmarsh  v.  Tu thill,  12  Howard  387  (Mandamus 
and  supersedeas)  (9)  Lanton  v.  Stanton,  12  Howard  423  (Decision  of  State 
Court  in  favor  of  right  claimed  under  an  act  of  Congress  does  not  entitle  the 
loser  to  a  writ  of  error)  (10)  U.  S.  v.  Porche,  12  Howard  426  (Act  of  1824  right 
to  file  a  petition  in  Louisiana  under  a  French  or  Spanish  grant  of  land  to  two 
years  thereafter)  (11)  U.  S.  v.  LeBlanc,  12  Howard  435  (Paper  extracted  from 
Spanish  register  of  land  titles  in  Louisiana,  purporting  to  contain  only  the 
recitals  which  usually  precede  Spanish  titles  in  form,  but  adding  no  words  of 
grant,  is  not  evidence  of  title,  especially  when  nothing  had  been  claimed  under 
it  for  69  years). 


298  ROGER  BROOKE  TANEY 

rights  furnished  no  justification  for  disobedience,  con- 
sequently, for  that  ''act  of  insubordination,"  he  was 
"liable  to  punishment."  Wilkes  also  had  discretion  as 
to  the  degree  of  punishment,  but  might  not  punish  from 
malice,  or  vindictive  feeling,  or  disposition  to  oppress, 
and  his  motive  in  inflicting  the  punishment  was  a 
question  of  fact  for  the  jury  exclusively.^^ 

In  the  United  States  v.  Reid^^  Taney  gave  the  decision 
for  the  Court  that  the  rules  of  evidence  in  force  in  the 
Federal  Courts  are  not  those  of  England,  but  those  in 
force  in  the  respective  States,  when  the  judiciary  act 
of  1789  was  passed.  Congress  may  change  these  rules, 
but  no  subsequently  passed  State  law  may  do  so.  In 
the  same  case,  he  refused  to  set  aside  a  verdict,  because 
two  jurors  read  the  newspapers  in  the  jury  room;  for 
nothing  in  this  act  was  calculated  to  influence  the  deci- 
sion in  the  case  and  both  of  the  jurors  swore  that  it  had 
not  done  so. 

In  the  latter  part  of  the  year,  Taney  delivered  opinions 
in  two  important  cases  arising  out  of  the  Mexican  War. 
In  one  of  these^^  an  army  officer  was  sued  in  trespass, 
for  seizing,  in  Chihuahua,  valuable  property  of  a  New 
York  merchant,  who  was  a  Spaniard  by  birth,  but  who 
had  been  naturalized  as  a  citizen  of  the  United  States. 
A  verdict  was  given  below  for  Harmony,  the  merchant, 
in  a  considerable  amount^^  and  Mitchell,  the  officer,  then 
appealed  from  this  judgment.  The  facts  in  the  case 
were  as  follows :  Harmony  had  planned  a  trading  expedi- 
tion from  Santa  Fe  to  Chihuahua,  before  the  Mexican 
War    began,    and    set    out    from    Fort    Independence, 

'^12  Howard  361. 

"  Mitchell  V.  Harmony,  13  Howard  115. 

"  $90,806.14  and  $5,048.94  costs. 

^^  Jecker  v.  Montgomery,  13  Howard  498. 


ROGER  BROOKE  TANEY  299 

Missouri,  on  that  intent.  After  General  Kearney's 
campaign  began  against  the  Mexican  forces  in  New 
Mexico,  he  stopped  Harmony,  but  permitted  him  to 
continue  trading  behind  the  army.  On  Kearney's 
transfer  to  California  the  campaign  was  left  to  Colonel 
Doniphan,  under  whose  command  was  Mitchell,  the 
appellant.  When  Harmony  had  arrived  in  the  State  of 
Chihuahua,  and  was  about  300  miles  from  the  city  of 
that  name,  he  determined  to  proceed  no  further.  Doni- 
phan insisted  that  he  do  so  and,  therefore,  Harmony 
continued  "in  that  hazardous  expedition."  "This," 
said  the  Court,  "was  unquestionably  a  taking  of  the 
property,  by  force,  from  the  possession  and  control  of 
the  plaintiff  and  a  trespass  on  the  part  of  the  defendant, 
unless  he  can  show  legal  grounds  of  justification. "  The 
latter  may  be  shown  thus: 

If  with  such  information  as  he  had  a  right  to  rely  upon,  there 
is  reasonable  ground  for  believing  that  the  peril  is  immediate  and 
menacing,  or  the  necessity  urgent,  he  is  justified  in  acting  upon  it, 
and  the  discovery  afterwards  that  it  was  false,  or  erroneous,  will 
not  make  him  a  trespasser.  But  it  is  not  sufficient  to  show  that 
he  exercised  an  honest  judgment  and  took  the  property  to  promote 
the  public  service;  he  must  show,  by  proof,  the  nature  and  charac- 
ter of  the  emergency,  such  as  he  had  reasonable  grounds  to  believe 
it  to  be,  and  it  is  then  for  a  jury  to  say,  whether  it  is  so  pressing  as 
not  to  admit  of  delay,  and  the  occasion  such,  according  to  the 
information  upon  which  he  acted,  that  private  rights  must,  for 
the  time,  give  way  to  the  common  and  public  good. 

Mitchell  had  not  shown  this:  "The  property  was 
seized,  not  to  defend"  Colonel  Doniphan's  "position, 
nor  to  place  his  troops  in  a  safer  one,  or  to  anticipate  the 
attack  of  an  approaching  enemy,  but  to  insure  the 
success  of  a  distant  and  hazardous  expedition  upon  whiqh 
he  was  about  to  march.     To  justify  the  seizure,  the 


300  ROGER  BROOKE  TANEY 

danger,  or  need,  must  have  been  urgent  and  immediate; 
not  remote,  or  contingent.  There  was  no  question  here 
of  an  officer's  discretion  in  military  operations,  or  in 
relation  to  those  under  his  command."  His  distance 
from  home  and  the  duties  in  which  he  is  engaged  cannot 
enlarge  his  powers  over  the  property  of  a  citizen,  nor 
give  to  him,  in  that  respect,  any  authority  which  he 
would  not,  under  similar  circumstances,  possess  at 
home.  And,  when  the  owner  has  done  nothing  to  for- 
feit his  rights,  every  public  officer  is  bound  to  respect 
them,  whether  he  finds  the  property  in  a  foreign  or 
hostile  country,  or  in  his  own.  *^It  is  impossible  to 
define  the  particular  circumstances  of  danger,  or  neces- 
sity, under  which  the  power  may  lawfully  be  exercised; 
for  every  case  must  depend  on  its  own  circumstances." 
"Our  duty  is  to  determine  under  what  circumstances, 
private  property  may  be  taken  from  the  owner  by  a 
military  officer  in  time  of  war.  And  the  question  here 
is  whether  the  law  permits  it  to  be  taken  to  insure  the 
success  of  any  enterprise  against  a  public  enemy,  which 
the  commanding  officer  may  deem  it  advisable  to  under- 
take. And  we  think  it  very  clear  that  the  law  does  not 
permit  it."  This  insistence  upon  the  subordination  of 
the  military  power  to  the  laws  is  the  essence  of  Taney's 
later  and  more  famous  decision  in  Ex  Parte  Merry  man. 
Mitchell  also  attempted  to  justify  himself  on  four 
other  grounds.  First,  he  claimed  that  Harmony  was 
trading  with  the  enemy.  That  plea  had  been  correctly 
overruled  by  the  Court  below,  since  the  military  officer 
had  no  right  to  seize  the  property  of  an  American  citizen 
for  performing  an  act  which  the  constituted  authorities, 
acting  within  the  scope  of  their  lawful  powers,  had 
authorized  to  be  done.  Secondly,  Mitchell  pleaded  that 
the  compulsion  was  necessary  to  prevent  the  property 


ROGER  BROOKE  TANEY  301 

from  falling  into  the  enemy's  hands.  His  reply  to  this, 
Taney  combined  with  that  to  the  plea  that  the  property 
had  been  taken  for  public  use. 

Thirdly,  the  defendant  asserted  that  Harmony  had 
resumed  possession  and  control  of  the  property  before 
losing  it,  which  fact  released  Mitchell  from  any  claim 
for  damages.  Taney  replied  that  this  had  not  been 
proven.  To  the  fourth  ground  of  defence,  that  Mitchell 
had  obeyed  his  commanding  officer,  the  Court's  rejoinder 
was  that  the  evidence  showed  that  Mitchell  advised 
the  order  and  volunteered  to  execute  it  and  that  the 
"order  given  was  to  do  an  illegal  act;  to  commit  a  tres- 
pass upon  the  property  of  another;  and  can  afford  no 
justification  to  the  person  by  whom  it  was  executed. 
.     .    .    .     The  order  may  palliate,  but  it  cannot  justify." 

The  other  case  arising  out  of  the  Mexican  war,  dealt 
with  naval  affairs^  ^  and  the  Court  held  therein  that 
neither  the  President,  nor  any  inferior  executive  officer, 
could  establish  a  prize  court  competent  to  take  jurisdic- 
tion in  a  case  of  capture,  jure  belli. 

The  law  of  nations,  confirmed  by  an  act  of  Congress, 
made  it  the  duty  of  a  captor  to  send  the  captured  prop- 
erty for  adjudication  by  a  prize  court  in  his  own 
country  with  competent  jurisdiction.  He  may  be 
excused,  through  imperative  circumstances,  for  making 
a  sale  of  the  property  and,  afterwards  in  due  season, 
subjecting  the  proceeds  to  the  jurisdiction  of  the  proper 
prize  court.  The  orders  of  the  commander-in-chief  not 
to  weaken  the  force  by  detaching  an  officer  and  crew 
for  the  prize,  or  the  captor's  own  deliberate  judgment 
that  the  public  service  does  not  permit  him  to  make 
such  a  detachment,  will  excuse  him  from  sending  in 
the  prize  for  adjudication.     If  no  sufficient  excuse  is  given, 

"  U.  S.  V.  Ferriera,  13  Howard  40. 


302  ROGER  BROOKE  TANEY 

or  if  the  captor  unreasonably  delayed  to  bring  the  prize 
to  an  adjudication,  the  court  may  refuse  to  proceed  and 
award  a  restitution,  with  or  without  damages,  on  the 
ground  of  the  forfeiture  of  rights  by  the  captor,  even 
though  the  original  capture  were  lawful.  If  the  captor 
neglect  to  proceed  at  all,  the  Court,  on  a  libel  filed  by 
the  owner  for  a  marine  trespass,  may  grant  a  monition 
to  proceed  to  a  adjudication  in  a  prize  court,  or  may  at 
once  award  damages.  In  this  case,  however,  the  captor 
had  not  forfeited  his  rights  and  the  prize  court  was 
ordered  to  proceed  with  the  case.  The  United  States 
Sloop  of  War,  Portsmouth,  seized  the  Admittance,  an 
American  vessel,  trading  with  the  Mexicans  at  San 
Jose,  California.  A  prize  court  had  been  established 
by  the  commandant  at  Monterey,  a  chaplain  having  been 
appointed  Alcalde  there  and  authorized  to  exercise 
admiralty  jurisdiction.  This  court  had  later  been 
sanctioned  by  the  President.  On  the  ground  that  prize 
crews  could  not  be  spared  from  the  squadron  to  bring 
the  captured  vessels  to  the  United  States,  the  ship  and 
cargo  were  condemned  at  Monterey  in  1847.  The 
money,  which  was  the  proceeds  of  the  sale,  had  been 
sent  to  the  United  States  and  was  now  in  the  custody 
of  the  Treasury  department.  The  court  thus  summed 
up  the  matter:  "All  captures jwre  belli  are  for  the  benefit 
of  the  sovereign  under  whose  authority  they  are  made 
and  the  validity  of  the  seizure  and  the  question  of  prize, 
or  no  prize,  can  be  determined  in  his  own  courts  only, 
upon  whom  he  has  conferred  jurisdiction  to  try  the 
question." 

Still  another  case  of  some  importance  was  one  which 
arose  from  the  operations  of  the  American  army  in 
Florida.^"    An  act  of  Congress  authorized  the  District 

^°  Not  by  the  President.  There  is  a  note  on  p.  52  on  Hayburn's  Case  and 
on  the  Yale  Todd  case. 


ROGER  BROOKE  TANEY  303 

Judge  for  that  State  to  adjudicate  claims  arising  from 
this  source  and  decreed  that  the  claims  should  then  be 
paid,  if  the  Secretary  of  the  Treasury  should,  on  receipt 
of  the  evidence,  deem  them  equitable.  Under  these 
circumstances,  the  Supreme  Court  held  that  the  Judge 
did  not  exercise  judicial  power,  but  acted  only  as  a 
commissioner  and  no  appeal  lay.  Congress  was  morally 
bound  to  provide  a  tribunal  for  such  cases,  but  had 
failed  to  do  so.  The  question  at  issue  was  one  between 
American  and  Spanish  Law.  These  ex  parte  proceedings 
were  not  judicial  and  the  Secretary  of  the  Treasury, 
not  the  judge,  decided  whether  the  United  States  owed 
a  debt.  Taney  thought  the  act  was  a  breach  of  the 
treaty  with  Spain,  by  which  Florida  had  been  annexed; 
but  that  the  question  was  political  and  not  judicial. 
Of  course,  the  Judge,  acting  as  commissioner  and  using 
"judgment  and  discretion,"  must  exercise  a  judical 
power,  as  does  every  commissioner.  The  law  had,  for 
many  years,  been  acted  on  as  valid  and  constitutional 
and  the  Court  would  not  now  overturn  it,  especially 
as  the  validity  of  the  appointment  of  the  judge  as  com- 
missioner by  the  act^^  was  not  before  the  Court. ^^ 

^^  Minor  decisions  in  13  Howard  were:  (1)  Crawford  v.  Points,  13  Howard  11 
(No  appeal  allowed  from  District  Court  decree  in  bankruptcy)  (2)  Roe  v. 
Beebe,  13  Howard,  25  (Ejectment  in  Alabama)  (3)  Barrow  v.  ffill,  13  Howard  54 
(Procedure  on  Writ  of  Error)  (4)  Williamson  v.  Barret,  13  Howard  101  (Collision, 
Dissents,  no  opinion)  (5)  Morsell  v.  Hall,  13  Howard  212  (Demurrer)  (6) 
U.  S.  V.  McCuUogh,  13  Howard  216  (Land  grant  in  Louisiana)  (7)  Trumbull 
V.  Adams  13  Howard  295  (Under  warehousing  act  of  1846,  an  importer  had  no 
right,  independently  of  regulations  by  the  Secretary  of  the  Treasury,  as  soon 
as  the  law  had  been  passed,  to  land  goods  at  a  point  of  delivery  to  which  the 
goods  were  destined  and  store  them  there,  giving  bonds  as  the  act  directed, 
since  the  operation  of  the  act  was  confined  to  ports  of  entry,  until  extended  by 
the  Secretary  to  points  of  delivery)  (8)  Lawrence  v.  Caswell,  13  Howard  488 
(Under  tariff  act  of  1846,  only  the  quantity  of  brandy  imported,  and  not  that 
shown  by  the  invoice,  is  dutiable:  but  as  this  act  lays  an  ad  valorem  duty,  an 
allowance  of  2  per  cent  of  the  quantity  gauged  cannot  be  made  under  the  act 


304  ROGER  BROOKE  TANEY 

One  of  Taney's  most  important  dissenting  opinions 
was  filed  at  this  term  and  the  general  opinion,  even  of 
his  admirers,  pronounces  him  to  have  been  wrong  in  it, 
owing  to  his  too  narrow  construction  of  the  power  over 
commerce.  It  was  the  famous  WheeUng  bridge  case,®^ 
in  which  the  Court  held  that  a  law  of  Virginia,  authoriz- 
ing the  obstruction  of  the  Ohio  River,  by  the  construction 
of  a  bridge  over  the  stream,  was  inoperative,  because 
the  river  was  a  public  navigable  stream  and  the  bridge 
obstructed  free  navigation.  Pennsylvania  brought  the 
suit,  inasmuch  as  that  State,  being  the  proprietor  of 
public  works,  suffered  special  damages  to  its  property 
by  reason  of  this  alleged  public  nuisance.  The  Court 
ordered  that,  by  a  suitable  drawbridge,  navigation 
should  be  restored  to  the  condition  of  being  free  from 
an  unreasonable  obstruction,  but  that  the  bridge  should 
not  be  ordered  to  be  abated  as  a  nuisance. 

Taney  said  that,  if  the  bridge  was  a  nuisance,  it  was 
because  of  the  violation  of  some  law  which  the  court 
had  the  right  to  administer.  Pennsylvania  had  the 
same  rights  as  an  individual  and  no  more.  The  Federal 
Government,  in  Taney's  view,  had  the  right  to  regulate 
commerce  on  the  Ohio  River,  as  a  public  navigable 
stream ;  but  had  not  exercised  that  power,  consequently, 
the  Court  can  not  act  under  any  Statute.  Nor  can  it 
act  under  the  Common  Law:  for  the  United  States 
Courts  have  no  Common  Law  jurisdiction,  unless  it 
has  been  conferred  by  Congressional  action.     The  bridge 

of  1799,  for  that  law  applied  only  to  liquors  subject  to  duty  by  the  gallon) 
(9)  United  States  v.  Pellerin,  13  Howard  p.  9.  (French  grants  in  Louisiana 
after  the  date  of  the  treaty  making  the  cession  to  the  United  States  are  void, 
unless  a  continued  possession  has  laid  the  foundation  for  presuming  confirma- 
tion of  a  Spanish  grant  by  the  authorities.) 

«2  Pa.  V.  Wheeling  Bridge  Co.,  13  Howard  518  at  579. 

«  Gibbons  &  Ogden,  9  Wheat  1. 


ROGER  BROOKE  TANEY  305 

was  not  a  nuisance  under  the  Common  Law  of  Virginia. 
If  it  had  been  such,  the  persons,  who  built  and  continued 
to  operate  the  bridge,  might  have  been  indicted  there- 
under, but  this  could  not  be  done.  Congress  may 
declare  the  obstruction  of  navigable  streams  an  offence 
against  the  United  States;  but,  until  this  has  been  done, 
Taney  saw  no  redress  for  Pennsylvania.  He  distin- 
guished cases  of  this  kind  from  boundary  cases,  where 
the  original  jurisdiction  was  conferred  by  the  Consti- 
tution and  where  the  power  of  Congress  was  merely 
to  provide  for  the  procedure.  The  bridge  lay  exclusively 
within  the  territory  of  Virginia  and  Taney  held  that  the 
authority  of  that  State  remained  over  the  river,  until 
Congress  shall  act,  as  otherwise  the  river  would  be  under 
no  control.  He  could  find  no  reason  for  deciding 
against  the  bridge  in  the  compact  betweeen  Virginia 
and  Kentucky,  when  the  later  area  became  a  State,  nor 
in  the  act  regulating  coasting  vessels.  He  distinguished 
the  case  from  Gibbons  v.  Ogden,^'^  likened  it  to  Wilson 
V.  Blackbird  Creek  Marsh  Company, ^^  and  called  atten- 
tion to  the  fact  that,  if  the  bridge  obstructed  navigation, 
the  Virginians  also  suffered.  He  held  that  the  fact  that 
there  was  a  port  of  entry  on  the  Ohio  above  the  bridge 
was  of  no  moment.  Equity  should  not  interfere  in 
this  case,  as  Taney  viewed  it,  for  the  evidence  was 
conflicting  and  the  injury  doubtful  and  there  were  no 
serious  embarrassments  in  the  way  of  an  action  at  law 
by  Pennsylvania  for  damages.  That  State  suffered  a 
"speculative,  questionable,  and,  at  most,  inconsiderable 
loss,"  She  may  not  sue  in  behalf  of  individuals.  The 
bridge  will  promote  the  convenience  of  the  public  and 
the  advantages  which  the  great  body  of  the  people  of 

w  Wilson  V.  Blackbird  Creek  Marsh  Co.  2  Pet.  245. 
» 14  Howard  38. 


306  ROGER  BROOKE  TANEY 

the  United  States  will  reap  from  the  bridge  appeared 
to  Taney  to  outweigh  the  disadvantages  and  incon- 
venience sustained  by  commerce  and  navigation.  Taney 
thought  the  case  ''came  to  near  the  confines  of  legisla- 
tion" and  it  is  fairly  clear  now  that  the  Court  was  right 
in  holding  that  he  pushed  the  doctrine  of  the  silence  of 
Congress  to  a  dangerous  excess. 

In  1852,  Taney  was  the  mouthpiece  of  the  Court  in 
Kennett  v.  Chambers/®  a  case  of  some  importance,  in 
which  his  opinion  seemed  to  Biddle  "eminently  wise  and 
correct."®^  The  case  involved  a  contract  made  in 
1836  by  an  inhabitant  of  Texas,  to  convey  land  there  to 
citizens  of  the  United  States,  in  consideration  of  advances 
of  money  made  by  them  in  the  State  of  Ohio,  to  enable 
him  to  raise  men  and  purchase  firearms,  to  carry  on 
war  with  Mexico.  The  independence  of  Texas  had  not 
yet  been  acknowledged  by  the  United  States,  so  that  the 
contract  was  held  by  the  Court  to  have  been  contrary 
to  our  national  obligations  to  Mexico:  to  have  violated 
the  public  policy  and  the  neutrality  laws  of  the  United 
States;  and,  consequently,  to  have  been  one  which  can 
not  be  specifically  enforced  by  the  Federal  Courts.     It 

66  Constitutional  History  176  (a),  p.  50. 

"  Minor  decisions  at  this  term  were:  (1)  Wylie  v.  Cox,  14  Howard  1  (Appeal) 
(2)  Ex  parte  Taylor,  14  Howard  3  (Mandamus)  (3)  Kanouse  v.  Martin,  14 
Howard  23  (procedure  on  Writ  of  Error)  (4)  Ex  parte  Many,  14  Howard  24 
(Mandamus)  (5)  Exparte  Many,  14  Howard  25  (Reargument  permitted,  only 
when  member  of  Court  who  concurred  in  the  judgment  asks  it)  (6)  Herman 
V.  Phalen  14  Howard,  79  (Affirmance)  (7)  Perkins  v.  Fouringuet,  14  Howard  328 
(appeal)  (8)  Peale  v.  Phipps,  14  Howard  358  (Receiver  appointed  by  a  State 
Court  in  Mississippi  cannot  be  served  in  that  capacity  in  a  Federal  Court  in 
Louisiana)  (9)  Bosley  v.  Bosley's  Executrix,  14  Howard  391  (A  contract  made 
by  a  testa  to  r  after  making  his  will,  to  lease  land  for  99  years,  with  a  ground 
rent  extinguishable  by  the  payment  of  a  fixed  sum,  revokes  a  devise.  Whether 
the  land  passes  with  the  residuary  estate  is  a  question  of  fact)  (10)  Jackson  v. 
Hale,  14  Howard  525  (Receipt  of  Warehouseman)  (11)  Bloomer  v.  McQueen, 
15  Howard  539  (patent). 


ROGER  BROOKE  TANEY  307 

belonged  to  the  Federal  Government  to  decide  when 
Texas  was  no  longer  a  part  of  Mexico.  Taney  went  on 
to  say^^  with  great  wisdom: 

The  intercourse  of  this  country  with  foreign  nations  and  its 
policy  in  regard  to  them  are  placed,  by  the  Constitution  of  the 
United  States,  in  the  hands  of  the  government  and  its  decisions 
upon  these  subjects  are  obligatory  upon  every  citizen  of  the  Union. 
He  is  bound  to  be  at  war  with  the  nation,  against  which  the  war 
making  power  has  declared  war,  and  equally  bound  to  commit  no 
act  of  hostility  against  a  nation  with  which  the  government  is  in 
amity  and  friendship.  This  principle  is  universally  acknowledged 
by  the  laws  of  nations.  It  lies  at  the  foundation  of  all  govern- 
ment, as  there  could  be  no  social  order,  or  peaceful  relations  be- 
tween the  citizens  of  different  countries,  without  it.  It  is,  how- 
ever, more  emphatically  true,  in  relation  to  the  citizens  of  the 
United  States.  For,  as  the  sovereignty  resides  in  the  people, 
every  citizen  is  a  portion  of  it  and  is  himself,  personally,  bound  by 
the  laws  which  the  representatives  of  the  sovereignty  may  pass, 
or  the  treaties  into  which  they  may  enter,  within  the  scope  of  their 
delegated  authority.  And  when  that  authority  has  plighted  its 
faith  to  another  nation,  that  there  shall  be  peace  and  friendship 
between  the  citizens  of  the  two  countries,  every  citizen  of  the 
United  States  is  equally  and  personally  pledged.  The  compact 
is  made  by  the  department  of  the  government,  upon  which  he 
himself  has  agreed  to  refer  the  power.  It  is  his  own  personal 
compact,  as  a  portion  of  the  sovereignty  in  whose  behalf  it  is  made. 
And  he  can  do  no  act,  nor  enter  into  any  agreement  to  promote, 
or  encourage,  revolt,  or  hostilities  against  the  territory  of  a  country 
with  which  our  government  is  pledged  by  the  treaty  to  be  at 
peace,  without  a  breach  of  the  faith  pledged  to  the  foreign  nation. 
If  he  breaks  these  rules,  the  Court  will  not  aid  him,  even  though  he 

^8 14  Howard  268.  Another  dissenting  opinion  was  filed  in  Re  Kaine, 
14  Howard  103  where  Taney  maintained  that,  when  a  United  States  Marshal, 
under  order  of  a  commissioner,  held  a  man  for  extradition  as  a  fugitive  from 
justice  in  Great  Britain,  the  Court  below,  to  which  a  habeas  corpus  writ  had 
been  served  out,  had  erred  in  upholding  the  commissioner's  proceedings. 


308  ROGER  BROOKE  TANEY 

was  actuated  by  a  desire  to  promote  the  cause  of  freedom.  But 
our  own  freedom  cannot  be  preserved  without  obedience  to  our 
own  laws,  nor  social  order  preserved,  if  the  judicial  branch  of 
the  government  countenanced  and  sustained  contracts  made  in 
violation  of  the  known  and  established  policy  of  the  political 
department,  acting  within  the  limits  of  its  constitutional  power. 

The  question  of  the  independence  of  Texas  was 
entirely  for  the  department  of  the  government  charged 
with  foreign  relations  to  determine.  Taney  would  not 
investigate  whether  Texas  was  independent  before  our 
recognition  of  her  as  a  State;  for,  to  do  so,  would  "take 
upon  ourselves  the  exercise  of  political  authority,  for 
which  a  judicial  tribunal  is  entirely  unfit  and  which 
the  Constitution  has  conferred  exclusively  upon  another 
department."  The  subsequent  acknowledgment  and 
annexation  of  Texas  gave  no  legality  to  the  agreement, 
which  was  void  and  illegal  when  made.  The  contract 
was  to  be  performed  in  Cincinnati,  not  Texas,  and  the 
advance  of  money  for  purposes  in  "contravention  of  the 
neutral  obligations  and  policy  of  the  United  States" 
avoided  the  contract.  No  law  of  Texas  could  absolve 
an  United  States  citizen  from  his  duty  to  his  govern- 
ment, nor  compel  the  Federal  Court  to  support  a 
contract,  if  made  either  in  violation  of  our  laws,  or  in 
contravention  of  the  public  policy  of  the  government, 
or  in  conflict  with  subsisting  treaties  with  a  foreign 
nation.  There  is  a  wise  sanity  about  this  opinion  which 
is  very  effective. ^^ 

•9 15  Howard  62.  Minor  opinions  in  the  same  volume  of  reports:  (1) 
U.  S.  V.  Roselius,  15  Howard  36  (Spanish  land  title  in  Louisiana)  (2)  Phelps  v. 
Meyers,  15  Howard  160  (procedure)  (3)  Winansv.  Denmead,  15  Howard  330 
(Taney  dissents  in  patent  case.  No  opinion.)  See  Connor's  Campbell,  p.  25. 
(4)  Walworth  v.  Kneeland,  15  Howard  348  (Jurisdiction)  (5)  Carter  v.  Bennett) 
15  Howard  354  (Jurisdiction  through  diverse  citizenship)  (6)  Dem.  v.  Ass.  of 
the  Jersey  Co.,  15  Howard  426  (Confirmation  of  Martin  v.  Waddell). 


ROGER  BROOKE  TANEY  309 

In  the  case  of  Vincennes  University  v.  Indiana,  Taney 
dissented.^"  The  University  had  been  created  by  the 
Territory  of  Indiana  in  1806,  and  the  Court  held  that 
the  legislature  had  this  power  and  that  the  State  Con- 
stitution had  not  impaired  the  corporation's  rights. 
While  the  franchises  could  not  be  exercised  while  there 
was  no  board  of  trustees,  yet  the  corporation  was  not 
dissolved  and  its  powers  to  act  were  restored  by  a  sub- 
sequent law,  under  which  the  board  was  organized. 
The  corporation  was  not  a  public  one  and  the  legislature 
could  not  divest  its  title  to  land  given  it  by  the  charter 
and  confer  it  upon  another  body  politic.  Taney,  dis- 
senting, distinguished  between  a  reservation  of  lands 
from  sale  in  1806  and  a  grant  of  land.  The  former  did 
not,  to  his  mind,  divest  the  title  from  the  United  States. 
The  funds  of  the  institution,  he  said,  were  contributed 
wholly  for  public  purposes  by  the  people  and  the  ap- 
pellants had  no  private  individual  interest,  but  are 
merely  public  agents  for  a  public  purpose.  We  listen 
here  to  echoes  of  the  Charles  River  Bridge  Case. 

The  great  patent  case  of  O'Reilly  v.  Morse,  involving 
the  electric  telegraph,  was  Taney's  most  important 
opinion  in  1853. ^^  The  Court  upheld  the  claim  of 
S.  F.  B.  Morse  to  be  the  first  inventor  of  the  magnetic 
telegraph.  If  he  had  been  preceded  by  an  European 
invention,  neither  patented  nor  described  in  print,  his 
patent  would  still  be  good,  nor  would  inquiries  made, 
or  information,  or  advice  received  by  him  from  men  of 

'•^  The  fact  that  the  American  patent  was  not  made  for  the  same  time  as  a 
foreign  patent  for  the  same  invention  did  not  make  it  invalid. 

'^The  specifications  for  a  patent  must  be  so  "full  and  exact  that  anyone 
skilled  in  the  science  to  which  it  appertains  can,  by  using  the  means  he  specifies, 
without  any  addition  to  or  subtraction  from  them,  produce  precisely  the  result 
he  describes."  The  patent  given  confers  "the  exclusive  right  to  use  the  means 
he  specifies  to  produce  the  result,  or  effect  he  describes,  and  nothing  more." 


310  ROGER  BROOKE  TANEY 

science,  impair  his  claim  to  an  invention  actually  made 
by  him.  Morse  had  petitioned  for  a  patent  in  1837, 
received  a  patent  in  1840,  and  obtained  reissues  in 
1846  and  1848,  the  latter  one  being  quite  important. "^^ 

The  case  was  recognized  as  important,  was  argued  at 
the  term  before  that  at  which  the  decision  was  made, 
and  was  then  continued.  Taney  said  of  Prof.  Joseph 
Henry,  one  of  the  witnesses  in  the  Court  below:  ''no  one 
has  contributed  more  to  enlarge  the  knowledge  of  electro- 
magnetism  and  to  lay  the  foundations  of  the  great 
invention  of  which  we  are  speaking." 

Morse  began  work  on  the  invention  at  a  time,  when 
"the  conviction  was  general  among  men  of  science  every- 
where that  the  object  could  and,  sooner  or  later,  would 
be  accomplished."  Four  inventors  were  nearly  simul- 
taneous in  their  discoveries,  Morse  in  America,  Steinheil 
of  Munich  in  1838,  Wheatstone  in  1837  and  Davy 
in  1838  in  England,  but  the  two  latter  ones  did 
not  describe  their  invention  until  1839.  Morse  made 
his  invention  in  1837,  overcoming  the  difficulty  of  the 
gradual  weakening  of  the  galvanic  current  on  the  wire, 
so  that  after  a  certain  distance,  it  was  not  strong  enough 
to  produce  a  mechanical  effect.  The  variations  from 
his  earlier  descriptions  in  the  reissue  did  not  imply  that 
there  had  been  a  different  discovery,  but  rather  that  the 
inventor  gave  a  "more  perfect  description  of  his  inven- 
tion." His  claim  for  the  "  use  of  the  motive  power  of 
the  electric,  or  galvanic  current,  ....  however 
developed,  for  marking  or  permitting  intelligible  charac- 
ters, signs  or  letters,  at  any  distances,  being  a  new 
application  of  that  power  of  which  I  claim  to  be  the 
first  inventor"  was  too  broad:  for  he  described  but  one 
process  and  there  should  have  been  a  disclaimer  filed. 

'fz'Ohio  Co.  V.  De  Bolt,  16  Howard  416. 


ROGER  BROOKE  TANEY  311 

As  there  was  delay  in  this,  Morse  was  not  given  costs 
against  the  infringer;  but  the  law,  which  required  the 
disclaimer,  was  remedial,  not  penal;  and  was  for  the 
protection  both  of  patentee  and  of  the  public,  so  the 
patent  was  not  overturned. "^^ 

Another  decision  made  later  in  the  term^*  showed  a 
divided  Court,  which  did  not  agree  upon  principles, 
only  Justice  Grier  concurring  with  Taney.  The  case 
involved  the  right  of  a  State  to  tax  a  corporation 
previously  untaxed  and  the  prohibition  of  the  im- 
pairment by  a  State  of  the  obligation  of  a  contract 
entered  into  the  case.  In  Taney's  long  opinion  he 
said  :^^ 

It  cannot  be  maintained,  in  any  tribunal  in  this  country,  that 
the  people  of  a  State,  in  the  exercise  of  the  powers  of  sovereignty, 
can  be  restrained  within  narrower  limits  than  those  fixed  by  the 
Constitution  of  the  United  States,  upon  the  ground  that  they  may 
make  contracts  ruinous  to  themselves.  The  principle,  that  they 
are  the  best  judges  of  what  is  for  their  own  interest,  is  the  founda- 
tion of  our  political  institutions. 

Banks  may  be  exempted  by  contract,  from  their 
equal  share  of  the  taxes,  as  they  are  likely  to  be  a  benefit, 
and  even  if  they  later  prove  to  be  a  public  injury,  the 
contract  is  binding,  if  it  be  within  the  authority  of  the 

73  At  p.  429. 

'^^ Minor  decisions  in  this  volume  are:  (1)  Burgess  v.  Gray,  16  Howard  48 
(State  Courts  have  no  jurisdiction  to  try  to  give  effect  to  inchoate  French  or 
Spanish  titles  to  land.  Mere  possession  of  land  in  Missouri  is  no  title  against  a 
grantee  under  the  United  States.)  (2)  Fournequet  v.  Perkins,  16  Howard  82 
(Exceptions  to  a  master's  report)  (3)  Siozer  v.  Many,  16  Howard  98  (Taxing 
costs)  (4)  Robertson  v.  Smith,  16  Howard  106  (jurisdiction  under  Section  25  of 
the  Act  of  1789  as  to  powers  of  trustees  of  bank  (5)  State  bank  of  Ohio  v. 
Knoop,  16  Howard  392  (Taney  held  that  Ohio  Life  Insurance  Co.  Case  should 
have  been  followed. 

""^  16  Howard  635,  Doe,  v.  Braden. 


312  ROGER  BROOKE  TANEY 

State.  The  Charles  River  Bridge  Case  admitted  this 
fact,  but  decided  against  the  corporation,  because  the 
privilege  had  not  been  so  granted. 

The  powers  of  sovereignty,  confided  to  the  legislative  body  of  a 
State,  are  undoubtedly  a  trust  committed  to  them,  to  be  executed, 
to  the  best  of  their  judgment,  for  the  public  good,  and  no  one 
legislature  can,  by  its  own  act,  disarm  their  successors  of  any  of 
the  powers,  or  rights,  of  sovereignty,  confided  by  the  people  to  the 
legislative  body,  unless  they  are  authorized  to  do  so  by  the  Consti- 
tution under  which  they  were  elected. 

The  Ohio  Constitution,  interpreted  by  an  Ohio  Court, 
decided  that  the  Constitution  did  not  make  this 
authorization;  but  earlier  decisions,  made  while  the 
State  Constitution  of  1802  was  in  force,  are  contrary  to 
this.  "This  Court  always  follows  the  decision  of  the 
State  Courts  in  the  construction  of  their  own  Constitu- 
tion and  laws.  But  where  those  decisions  are  in  conflict, 
this  Court  must  determine  between  them"  and  "adopt 
the  construction"  the  Constitution  "received  from  the 
State  authorities,  at  the  time  the  contract  was  made." 
If  the  contract  was  then  valid,  its  validity  cannot, 
subsequently,  be  impaired  by  the  legislature.  This 
question,  as  we  shall  see,  came  up  subsequently  in  the 
Dred  Scott  case.^^ 

In  one  of  the  many  perplexing  suits  arising  out  of 
Spanish  grants  of  lands  in  Florida,  ^^  Taney  held  that 
whether  the  King  of  Spain  had  power  to  annul  a  pre- 
vious grant,  by  a  provision  of  the  Treaty  of  1819,  is  a 
"question  foreclosed  in  every  judicial  tribunal  of  the 
United  States,  by  the  action  of  the  President  and  Senate, 

'« 17  Howard  369  at  391. 

"  The  Statute  of  Elizabeth  conferred  no  new  powers  on  the  crown  and  so 
was  not  in  point. 


ROGER  BROOKE  TANEY  313 

treating  with  him  as  having  that  power."  He  added 
that  "a  treaty  is,  therefore,  a  law  made  by  the  proper 
authority." 

At  the  term  beginning  in  December  1854,  Taney 
concurred  with  the  decision,  but  dissented  from  the 
reasoning  in  Fontain  v.  Ravenel,^^  concerning  charitable 
bequests  in  Pennsylvania  and  South  Carolina.  The 
Court  held  that  its  judicial  power  extended  to  law  and 
equity,  but  not  to  the  prerogatve  powers,  which  the 
king,  as  parens  patriae,  exercised  over  infants,  lunatics, 
idiots,  and  charities.  These  powers  remain  with  the 
States,  whose  laws  may  not  authorize  the  Federal  Courts 
to  exercise  power  that  is  not  in  its  nature  judicial,  nor 
can  they  confer  upon  them  prerogative  powers.  ^^  The 
Circuit  Courts  of  the  United  States  deal  with  bequests 
for  charitable  purposes,  as  they  deal  with  those  for  other 
lawful  purposes. 

At  the  same  term,  a  boundary  case  between  Florida 
and  Georgia  was  determined,  Taney  giving  the  opinion, 
while  four  justices  dissented. ^^  He  held  that  the  United 
States,  as  proprietor  and  grantor  of  the  lands  in  the 
disputed  territory,  may  bring  evidence  to  establish  the 
boundary  claimed  by  the  United  States.  The  omission 
of  any  regulation  made  by  Congress  under  the  power 
to  exercise  jurisdiction  between  States,  did  not,  the 
Court  repeated,  deprive  the  Supreme  Court  of  jurisdic- 
tion. The  general  rule  and  usage  of  courts  was  adopted. 
The  Court  further  said  that  the  United  States  need  not 
be  made  a  party,  even  though  it  has  an  interest;  but 
that  the  Federal  Attorney  General,  in  his  official  capac- 

'8  McLean,  Curtis,  Campbell  and  Daniel. 
"17  Howard  477. 

80  Fremont  v.  U.  S.,  17  Howard  542.  17  Howard  232  at  258.  The  matter 
had  previously  come  before  the  Court  in  11  &  12  Howard. 


314  ROGER  BROOKE  TANEY 

ity,  could  not  conduct  a  suit  for  a  State.  ^^  In  a  case 
involving  land  titles  in  California^^  the  Court  had  for 
consideration  the  title  to  a  grant  of  10  square  leagues 
made  by  the  Mexican  Government  for  meritorious 
services,  which  land  had  later  been  surveyed  under  the 
laws  oi  the  United  States,  since  Indian  troubles  had  made 
it  dangerous  to  survey  the  land  under  Mexican  rule. 
Alvarado,  the  grantor,  sold  the  tract  to  General  Fremont, 
whose  title  to  it  was  confirmed. 

The  distribution  of  the  estate  of  Robert  Oliver  of 
Baltimore  caused  Taney  to  dissent  from  the  Court's 
findings  in  Williams  v.  Gibbes.^^  The  effect  of  a  Mary- 
land decree  in  Chancery,  as  to  the  distribution  of  a 
common  fund,  to  one  not  guilty  of  laches,  nor  party  to 
the  decree,  was  to  be  determined.  Taney  had  differed 
from  the  Court  in  its  previous  decision,  but  conformed 
to  the  decision  and  dismissed  the  case,  when  it  came 
back  to  him  at  the  Circuit  Court.  *'  It  appears,  however, 
by  the  opinion  just  delivered,"  Taney  wrote,  "that  I 
was  mistaken  and  placed  an  erroneous  construction  on 
the  opinions  formerly  delivered,"  consequently,  he  gave 
the  reasons  for  his  acts  and,  with  proud  dignity,  thus 

81  Page  270. 

82  Minor  decisions  at  this  term  are:  (1)  Bruce  v.  U.  S.,  17  Howard  437 
(Accounts  and  bond  of  an  Indian  agent)  (2)  Poydras  v.  Treas'r  of  La.,  17  Howard 
1  (A  Citation  to  a  State  on  a  writ  of  error  against  a  judgment  won  by  the 
Treasurer,  the  State  not  being  a  party  on  the  record,  should  be  sent  him  and 
not  the  Governor  or  Attorney  General)  (3)  Shields  v.  Thomas,  17  Howard  3  (the 
amount  needed  to  give  the  Court  jurisdiction,  is  the  total  sum  due  and  if  it  be 
over  $2,000.00  jurisdiction  attaches,  though  the  share  of  each  complainant  is 
less  than  that  amount)  (4)  Barrebean  v.  Brant,  17  Howard  43  (Abatement) 

(5)  Bank  of  Tenn.  v.  Horn,  17  Howard  157  (Lien  in  La.  on  lands  of  debtors) 

(6)  Peck  V.  Sanderson,  17  Howard  178  (Collision  of  vessels)  (7)  U.  S.  v.  Seaman, 
17  Hov/ard  225  (Mandamus  refused  to  compel  Superintendent  of  public  print- 
ing to  place  a  document  in  the  hands  of  the  printer  of  the  Senate,  rather  than 
in  those  of  the  printer  of  the  House.) 

83 18  Howard  477. 


ROGER  BROOKE  TANEY  315 

closed  his  opinion :^^  "With  all  the  habitual  respect 
which  I  feel  for  the  judgment  of  my  brethren,  the 
opinion  I  held  at  the  time  remains  unchanged.  "^^ 

The  opinions  rendered  by  Taney  at  the  December 
term  of  1855  are  unimportant.  In  United  States  v. 
Booth ^^  Taney  held  that,  when  the  Clerk  of  a  State 
Supreme  Court  neglects,  or  refuses,  to  make  a  return 
to  a  writ  of  error,  the  Court  will  lay  a  rule  on  him  to  show 
cause  why  the  return  should  not  be  made.  Taney 
concurred  with  the  final  decision  in  the  Wheeling  Bridge 
Case.^^ 

These  were  the  halcyon  days  of  Taney's  life.  Van 
Santvoord,  wTote  at  this  time  in  the  **  Lives  of  the  Chief 
Justices :"s»  "At  the  head  of  the  procession"  of  the 
justices  in  their  black  silk  gowns  at  the  opening  of  court, 
"you  observe  a  tall,  thin  man,  slightly  bent  with  the 
weight  of  years,  of  pale  complexion  and  features  some- 
what attenuated  and  careworn,  but  lighted  up  by  that 
benignant  expression,  which  is  indicative  at  once  of  a 
gentle  temper  and  a  kindly  heart.     With  a  firm  and 

8*  21  Howard  506. 

^  18  Howard  420  at  462.  Minor  opinions  at  this  term  are :  (1)  Greeley's  Ad- 
ministration V.  Burgess,  18  Howard,  413.  (Taney  dissented  from  the  view  that 
was  not  necessary  to  set  forth  specifically  the  reasons  on  which  a  charge  against 
appraisers  of  goods  was  made).  (2)  Maxwell  v.  Newbold,  18  Howard  511. 
(Jurisdiction.  Question  must  actually  have  arisen  in  a  State  Court,  and  the 
clause  of  the  Constitution  and  the  law  involved  must  be  certified  to  the  Court 
that  what  was  claimed  may  be  seen  and  whether  it  was  denied).  (3)  Stairs  v. 
Peaslee,  18  Howard,  521.  (Appraisal  of  value  of  cutch  imported.  A  product 
of  India  shipped  from  Halifax  to  Boston,  is  to  be  appraised  at  its  value  in 
London  and  Liverpool,  its  chief  markets.  The  term  "country"  embraces  all 
the  possessions  of  the  State.)  (4)  Hudgins  v.  Kemp,  18  Howard,  530. 
(Appeal  Bonds). 

86 1st  ed.  1854  p.  522-525,  2nd  ed.  revised  by  Wm.  N.  Scott,  appeared  in 
1882: 

"  Tyler,  p.  469. 

88  Tyler,  p.  320. 


316  ROGER  BROOKE  TANEY 

Steady  step,"  he  moves  to  his  seat  and  turns  to 
the  audience  piercing  eyes  "beneath  the  dark  mass  of 
hair  which  overhangs  the  forehead  of  the  tall,  thin, 
venerable,  old  man." 

He  disliked  personal  differences,  and  used  his  good 
offices  in  1848  to  harmonize  the  Reporter  and  the  Clerk 
of  the  Court,  when  they  had  fallen  out  with  each  other,  ^^ 
writing  Mr.  Peters,  the  Reporter,  *'I  will  see,  when  we 
meet  again,  if  there  is  not  a  place  left  for  the  peace- 
maker— for  a  peacemaker  who  sincerely  respects  and 
and  esteems  both  of  you;  and  who  would  do  much 
to  reestablish  friendly  relations  between  you." 

In  the  next  year.  General  Zachary  Taylor  wrote 
Taney,  ^^  requesting  that  he  administer  the  presidential 
oath;  not  only  in  compliance  with  custom,  but  also  to 
''give  expression  to  the  high  respect  I  entertain  for  the 
Supreme  Bench  and  its  august  presiding  officer." 
Taney,  with  equal  courtesy,  replied,  expressing  his 
pleasure  at  performing  the  ceremony  and  finding  the 
duty  "more  agreeable,  because  the  high  trust  to  which 
you  are  called  has  been  spontaneously  bestowed  by  the 
American  people  upon  a  citizen  already  so  eminently 
distinguished  for  the  able  and  faithful  discharge  of  great 
public  duties." 

His  former  adversaries  had  become  friendly.  Webster 
in  an  address  at  the  Pilgrims'  Festival  in  New  York  in 
1850,^1  said  that  we  are  Protestants,  but  a  Roman 
Catholic  is  Chief  Justice  and  no  man  imagines  that  the 
"administration  of  public  justice  is  less  respectable  or 
less  secure.  "^2     Clay  had  long  since  buried  his  hostility. 

89  Quoted  in  67  Catholic  World  396. 

90  Tyler,  p.  317. 

91  Tyler,  p.  318. 

92  On  October  27,  1851,  he  was  present  at  the  laying  of  the  corner  stone 
of  the  House  of  Refuge  in  Baltimore,  Scharf 's  Chronicles  of  Baltimore. 


ROGER  BROOKE  TANEY  317 

William  H.  Seward  asked  the  privilege,  in  January  1851, 
of  inscribing  to  Taney  a  speech  recently  delivered  on  the 
French  spoliation  claims,  both  because  he  believed  that 
Taney  would  approve  of  its  sentiments ^^  and  ''because 
it  would  be  an  expression  of  the  high  regard  which,  in 
common  with  the  whole  American  people,  I  entertain 
for  you,  as  head  of  the  Judiciary  Department. "  Taney 
declined  the  request,  as  he  was  'Very  unwilling  to  have" 
his  "name  in  any  way  connected  with  a  measure  pending 
before  the  Legislative  or  Executive  Departments  of  the 
Government,"  lest  his  so  doing  "might  be  construed 
into  interference."^^ 

Judge  Taney's  youthfulness  of  spirit,  and  his 
approachability  by  young  people,  are  shown  most 
pleasingly  in  a  letter  now  in  the  collections  of  the 
collections  of  the  Maryland  Historical  Society,  written 
by  him  to  Mr.  J.  B.  Noel  Wyatt,  on  March  17,  1852, 
when  Mr.  Wyatt  was  four  years  old,  and  Judge  Taney 
was  75,  Mr.  Wyatt's  mother  had  sent  the  Judge  a 
bottle  of  old  Madeira  wine,  on  the  occasion  of  Taney's 
birthday,  in  the  name  of  her  son,  as  the  two  families 
were,  at  that  time,  in  very  close  and  intimate  friendship. 
In  reply.  Judge  Taney  wrote: 

My  dear  Jimmie 

I  thank  you  for  your  Birthday  present,  and  shall  drink  a  glass 
of  it  today  to  your  health.  And  when  you  become  seventy  five 
years  old,  as  I  am  today,  you  will  know  how  pleasant  it  is  to  be 
remembered  on  your  Birthday  by  a  young  friend — the  representa- 
tive of  much  matured  older  ones:  some  living,  some  dead. 

You  will,  I  am  sure,  prove  yourself  worthy  of  them.  And  that 
you  may  always  do  so,  is  the  sincere  prayer  of  your  friend, 

R.  B.  Taney. 

Mr.  J.  Bosley  Wyatt. 

«3  Letters  and  Times  of  the  Tylers  by  L.  G.  Tyler  I  497. 
9*  Tyler,  p.  322. 


318  ROGER  BROOKE  TANEY 

In  1855,  at  the  Maryland  Institute  in  Baltimore, 
Ex-president  Tyler^^  said  that  he  had  voted  in  the  United 
States  Senate  against  Taney  as  Secretary  of  the  Treasury ; 
but  "had  I  known  him,  as  I  have  since  in  his  exalted  office 
of  Chief  Justice  of  the  United  States,  maugre  any  dis- 
crepancy of  opinion  which  might  have  existed  between 
us,  there  was  no  office,  however  exalted,  either  in  the 
gift  of  the  Executive  or  the  people,  for  which  I  would 
not  promptly  have  sustained  him." 

Samuel  Tyler,  who  subsequently  became  Taney's 
biographer,  was  practicing  law  at  Frederick  in  this 
period  and  became  much  interested  in  law  reform, 
especially  in  regard  to  the  procedure  and  pleading  of 
the  courts.  Having  made  an  elaborate  report  upon  the 
subject  to  the  State  legislature,  he  sent  a  copy  thereof 
to  Taney,  who  acknowledged  it  with  an  interesting 
letter  on  June  12,  1854.^^  He  declined  to  examine  the 
report;  for,  at  his  time  of  life,  he  felt  the  labors  of  the 
Supreme  Court  session  and  required  "repose  and  relaxa- 
tion from  business  to  regain  my  strength."  To  ex- 
amine the  report  "in  all  its  bearings"  would  "occupy 
nearly  the  whole  summer."  "The  task  of  reforming — 
in  other  words  of  radically  changing — the  system  of 
pleading,  which  is  interwoven  with  the  Common  Law 
itself,  is  one  of  extreme  difficulty  and  delicacy."  Taney 
was  not  convinced  of  the  success  of  the  experiments  in 
England  and  in  some  of  the  United  States.  "For  more 
disputes  arise  as  to  the  meaning  of  words  in  new  com- 
binations and  new  modes  of  averment ;  while  in  Common 
Law  pleading,  as  it  now  stands,  the  ordinary  counts  in 

^  Tyler  later  prepared  a  treatise  to  uphold  the  simplified  pleading,  and 
sent  Taney  a  copy  of  it,  receiving  from  him  a  courteous  and  complimentary 
note  of  acknowledgment  in  return.    Tyler,  p.  324. 
^  Tyler,  p.  16. 


ROGER  BROOKE  TANEY  319 

a  declaration  and  ordinary  pleas  have  a  certain  definite 
form,  which  conveys  a  certain  definite  meaning,  about 
which  lawyers  can  never  doubt,  or  dispute."  On  the 
other  hand,  Taney  thought  that  the  Courts,  long  ago, 
ought  to  have  used  the  power 

given  to  them  by  the  Legislature  to  give  judgment  according  to  the 
right  of  the  matter,  without  regard  to  matters  of  form;  and  yet 
they  obstinately  (I  must  say),  continued  to  treat  as  a  matter  of 
substance,  what  evidently  was  nothing  but  form,  merely  because 
it  was  called  substance  in  some  of  the  old  law  books.  I  fear  they 
will  continue  to  do  so,  without  some  specific  direction  from  the 
Legislature.  But  when  that  direction  is  given,  it  will  require  the 
greatest  care  and  consideration,  to  preserve  all  that  is  really 
essential  to  the  common  law  and  trial  by  jury  and  dispense  with 
everything  else.  For,  certainly,  the  proceedings  ought  to  be  so 
molded  that  the  party  having  right  on  his  side,  should  not  be 
defeated  by  technicality,  or  nicety  in  pleading.  But  to  do  this 
by  legislation,  and  yet  preserve,  in  full  vigor  and  usefulness,  the 
great  principles  of  the  common  law  and  trial  by  jury  (without 
which,  in  my  judgment,  no  free  government  can  long  exist),  will 
require  much  reflection  and  care  in  matters  of  detail,  and  great 
perspicuity  in  language. ^^ 

In  the  summer  oi  1854,  Taney  went  to  Old  Point 
Comfort  for  his  vacation  and  there  began  writing  an 
autobiography.  9^  In  1855,  he  repeated  this  visit^^  and 
was  there  at  the  time  of  the  yellow  fever  epidemic  at 
Norfolk.  Mrs.  Taney  caught  the  disease  and  died  on 
September  29,  and  the  youngest  daughter,  Alice,  died 
on  the  following  day.     Taney  bore  up  bravely  under  this 

97  Tyler,  p.  326;  Bookman,  February,  1918,  p.  711. 

*8  Tyler  prints  an  interesting  letter  of  condolence  from  a  negro  slave  of  the 
Key  family,  p.  328. 

99  B.  R.  Curtis  Life,  I,  240.  B.  R.  Curtis,  Professional  and  miscellaneous 
Writings,  Vol.  II,  p.  336. 


320  ROGER  BROOKE  TANEY 

heavy  double  blow.     When  Mr.  Justice  Curtis  wrote 
to  condole  with  him,  he  replied: 

It  has  pleased  God  to  support  me  in  the  trial,  and  to  enable  me 
to  resign  myself  in  humble  submission  to  His  will.  And  I  am 
again  endeavoring  to  fulfil  the  duties  which  may  yet  remain  to 
me  in  this  world.  But  I  shall  enter  upon  those  duties  with  the 
painful  consciousness  that  they  will  be  imperfectly  discharged. 
The  chastisement  with  which  it  has  pleased  God  to  visit  me  has 
told  sensibly  upon  a  body  already  worn  by  age,  as  well  as  upon 
the  mind,  and  I  shall  meet  you  with  broken  health  and  with  a 
broken  spirit.^^^ 

Of  this  autobiography,  George  T.  Curtis  wrote  that 
it  was  "one  of  the  most  beautiful  pieces  of  that  kind  of 
writing  that  I  know  of  in  the  English  language.  The 
late  Chief  Justice  was  master  of  a  singularly  graceful 
and  easy  style,  perfectly  perspicuous  and  correct.  "^"^ 

Mr.  Justice  Benjamin  R.  Curtis  was  appointed  to  the 
Bench  of  the  Supreme  Court  in  the  year  1851,  when 
Taney  was  seventy-three  years  old,  and  retired  from 
the  Bench  in  1857,  largely  in  consequence  of  the  Dred 
Scott  decision,  which  caused  the  relations  between  him 
and  Taney  to  become  strained.  When  Taney  died, 
however,  Curtis  presented  resolves  at  a  meeting  of  the 
Boston  Bar,  held  upon  October  15,  1864,io2  to  the  effect 
*'that  the  members  of  this  Bar  render  tribute  of  their 
admiration  and  reverence  for  the  preeminent  abilities, 
profound  learning,  incorruptible  integrity,  and  signal 
private  virtues  exhibited  in  the  long  and  illustrious 
judicial  career  of  the  late  lamented  Roger  B.  Taney." 

In  his  remarks,  made  in  support  of  this  resolution, 
Mr.   Curtis  referred  to  the  statement  that  for  forty 

1°°  Reviewing  Van  Santvoord's  Lives  of  the  Chief  Justices,  27  So.  Q.  R.  331. 

101  Pages  362-363. 

102  Tyler,  p.  509. 


ROGER  BROOKE  TANEY  321 

years,  Taney's  death  might  have  always  been  expected 
within  six  months  and  that  Taney  had  made  such  an 
impression  on  Curtis,  when  the  latter  first  became 
judge. 

His  tall,  thin  form,  not  much  bent  with  the  weight  of  years, 
but  exhibiting,  in  his  carriage  and  motions,  great  muscular  weak- 
ness, the  apparent  feebleness  of  his  vital  powers,  the  continual  and 
rigid  care  necessary  to  guard  what  little  health  he  had,  strongly 
impressed  casual  observers  with  the  belief  that  the  remainder  of 
his  days  must  be  short.  But  a  more  intimate  acquaintance  soon 
produced  the  conviction  that  his  was  no  ordinary  case,  because  he 
was  no  ordinary  man.  An  accurate  knowledge  of  his  own  physical 
condition  and  its  necessities  braced  and  vivified  the  springs  of 
life — a  temper,  which  long  discipline  had  made  calm  and  cheerful, 
and  the  consciousness  that  he  occupied  and  continued  usefully  to 
fill  a  great  and  difficult  office,  whose  duties  were  congenial  to  him, 
gave  assurance,  which  the  event  has  justified,  that  his  life  would 
be  prolonged  much  beyond  the  allotted  years  of  man. 

While  Curtis  sat  with  Taney  on  the  Bench,  no  "in- 
firmity of  the  mental  powers"  of  the  Chief  Justice  was 
manifest. 

Memory  is  that  faculty  which  first  feels  the  stifltness  of  old  age. 
His  memory  was,  and  continued  to  be,  alert  and  true  as  that  of 
any  man  I  ever  knew.  In  consultation  with  his  brethren,  he 
could,  and  habitually  did,  state  the  facts  of  a  voluminous  and 
complicated  case  with  every  important  detail  of  names  and  dates, 
with  extraordinary  accuracy,  and,  I  may  add,  with  extraordinary 
clearness  and  skill,  and  his  recollection  of  the  principles  of  law 
and  of  the  decisions  of  the  Court  over  which  he  presided  was  as 
ready  as  his  memory  of  facts. 

He  had  none  of  the  querulousness  which  too  often  accompanies 
old  age.  There  can  be  no  doubt  that  his  was  a  vehement  and 
passionate  nature,  but  he  had  subdued  it.  I  have  seen  him  sorely 
tried,  when  the  only  observable  effects  of  the  trial  were  silence  and 


322  ROGER  BROOKE  TANEY 

a  flushed  cheek.  So  long  as  he  lived,  he  preserved  that  quietness 
of  temper  and  that  consideration  for  the  feelings  and  wishes  of 
others  which  were  as  far  as  possible  removed  from  weak  and 
selfish  querulousness. 

Down  to  the  last  term  in  which  he  sat  on  the 
Bench,  his  presence  was  felt  to  be  as  important  as  at 
any  period  of  his  life.  Curtis  remembered  the  general 
impression  in  New  England  at  the  time  of  Taney's 
appointment  as  Chief  Justice  "that  he  was  neither  a 
learned  nor  a  profound  lawyer.  This  was  certainly  a 
mistake.  His  mind  was  thoroughly  imbued  with  the 
rules  of  the  Common  Law  and  of  equity."  Curtis 
found,  him,  the 

master  of  all  that  peculiar  jurisprudence  which  it  is  the  special 
province  of  the  Courts  of  the  United  States  to  administer  and 
apply.  His  skill  in  applying  it  was  of  the  highest  order.  His 
power  of  subtle  analysis  exceeded  that  of  any  man  I  ever  knew, 

but  in  his  case  it  was  balanced  and  checked  by 

excellent  common  sense  and  by  great  experience  in  practical 
business,  both  public  and  private.  His  physical  infirmities  dis- 
qualified him  from  making  those  learned  researches,  with  the 
results  of  which  other  great  judges  have  illustrated  and  strengthened 
their  written  judgments,  but  it  can  be  truly  said  of  him  that  he 
rarely  felt  the  need  of  them.  The  same  cause  prevented  him 
from  writing  so  large  a  proportion  of  decisions  as  Marshall  did. 
As  a  result  of  this  fact,  his  real  importance  in  the  Court  may 
not  have  been  appreciated.  The  surpassing  ability  of  the  Chief 
Justice  and  all  his  great  qualities  of  character  and  mind  were 
more  fully  and  constantly  exhibited  in  the  consultation  room, 
while  presiding  over  and  assisting  in  the  deliberations  of  his 
brethren,  than  the  public  knew,  or  can  ever  justly  appreciate. 
Then  his  dignity,  his  love  of  order,  his  gentleness,  his  caution,  his 
accuracy,  his  discrimination,  were  of  incalculable  importance. 
The  real  intrinsic  character  of  the  tribunal  was  greatly  influenced 
by  them  and  always  for  the  better. 


ROGER  BROOKE  TANEY  323 

How  he  presided  over  the  public  sessions  of  the  Court,  some 
who  hear  me  know.  The  blandness  of  his  manners,  the  prompt- 
ness, precision,  and  firmness  which  made  every  word  he  said 
weighty,  and  made  very  few  words  necessary,  and  the  unflagging 
attention  which  he  fixed  on  every  one  who  addressed  the  Court, 
will  be  remembered  by  all. 

But  all  may  not  know,  that  he  had  other  attainments  and 
qualities  important  to  the  prompt,  orderly,  and  safe  dispatch  of 
business.  Under  Marshall,  a  "somewhat  loose"  administration 
of  the  practice  of  the  Court  had  prevailed,  for  the  amount  of 
business  was  small.  "No  considerable  inconvenience"  resulted 
then,  "but  when  the  docket  became  crowded  with  causes  and 
heavy  arrears  were  accumulated,  it  would  have  been  quite  other- 
wise." Taney  "made  himself  entirely  familiar  with  the  rules  of 
the  courts  and  with  the  circumstances  out  of  which  they  had 
arisen.  He  had  a  notable  aptitude  to  understand  and,  so  far  as 
was  needed,  to  reform  the  system.  It  was  almost  a  necessity  of 
his  character  to  have  it  practically  complete.  It  was  a  necessity 
of  his  character  to  administer  it  with  unyielding  firmness. 

He  uniformly  wrote  the  opinions  of  the  Court  upon  new  points 
of  its  practice.  This  was  a  very  important  fact,  for  the  practice 
of  the  Court  involved  not  merely  the  orderly  and  convenient 
conduct  of  this  vast  diversified  business  drawn  from  a  territory  so 
vast,  but  questions  of  constitutional  law  running  deep  into  the 
framework  of  our  complicated  constitutional  system.  Upon  this 
entire  subject,  the  Chief  Justice  was  vigilant,  steady,  and  thor- 
oughly informed. 

On  the  only  important  occasion  which  I  had  the  misfortune  to 
differ  with  the  Chief  Justice  on  such  points,  I  thought  he,  and 
they  who  agreed  with  him,  carried  the  powers  of  the  Court  too 

far The  great  powers  intrusted  to  the  Court  by  the 

Constitution  and  laws  of  his  country,  he  steadily  and  firmly  up- 
held and  administered  and,  ....  showed  no  disposition 
to  exceed  them. 

He  was  as  absolutely  free  from  the  slightest  traces  of  vanity 
and  self  conceit  as  any  man  I  ever  knew.  He  was  aware  that 
many  of  his  associates  were  ambitious  of  doing  this  conspicuous 


324  ROGER  BROOKE  TANEY 

part  of  their  joint  labor — "the  writing  of  opinions — and  he  per- 
mitted them  to  do  so,  writing  fewer  ones  himself  for  that  reason." 
The  preservation  of  the  harmony  of  the  members  of  the  court 
and  of  their  good  will  to  himself  was  always  in  his  mind. 

His  opinions  were  characterized  by  that  purity  of  style  and 
clearness  of  thought  which  marked  whatever  he  wrote  or  spoke 
and  some  of  them  must  always  be  known  and  recurred  to  as 
masterly  discussion  of  their  subjects. 

Curtis  closed  this  noble  tribute,  by  saying  that 

It  is  one  of  the  favors  which  the  Providence  of  God  has  bestowed 
upon  our  once  happy  Country,  that  for  the  period  of  63  years 
this  great  office  has  been  filled  by  only  two  persons,  each  of  whom 
has  retained  to  extreme  old  age  his  great  and  useful  qualities 
and  powers.  The  stability,  the  uniformity  and  usefulness  of  our 
national  jurisprudence  are  in  no  small  degree,  attributable  to 
this  fact. 

Just  about  this  time,  a  writer  in  the  Southern 
Quarterly  Review  spoke  of  Taney's  judgments 

as  models  of  judicial  style  and  so  clear  and  cogent  in  their  logical 
power  that  those  even  who  hesitate  at  the  conclusions  can  scarcely 
see  where  to  detect  the  error.  Those  who  have  been  so  fortunate 
as  to  hear  Judge  Taney  from  the  bench  are  well  acquainted  with 
that  inimitable  manner,  that  patient,  never- varying  attention, 
that  instant  appreciation  of  an  idea  or  an  argument,  that  combi- 
nation of  admirable  qualities — which  unite  to  make  him  pre- 
eminently distinguished  as  a  presiding  judge. 

The  same  writer,  also  stated : 

The  issue  between  the  North  and  the  South  on  the  subject  of 
slavery  affords  an  illustration  of  the  necessity  for  a  perfectly 
independent  judiciary  and  shows  how  difficult  it  is  for  a  judge, 
responsible  to  the  people  of  a  particular  section,  to  decide  with 
impartiality,  where  the  conflicting  claims  of  two  sections  are 


ROGER  BROOKE  TANEY  325 

involved.  The  federal  judiciary  in  its  freedom  from  all  bias,  has 
been  the  great  trust  of  the  people  of  the  South  for  the  preservation 
of  those  rights,  which  only  need  for  their  support  a  just  interpreta- 
tion of  the  Constitution  and  an  unprejudiced  judgment  on  the 
principles  of  Law. 

The  tempest  of  popular  feeling  against  Southern  institutions 
seems  to  have  overwhelmed,  in  the  North,  every  political  barrier 
against  the  invading  flood  of  aggression.  To  the  swelling  tide, 
nothing  seems  to  be  opposed  but  the  barriers  of  judicial  indepen- 
dence, which  the  great  architects  of  the  Constitution  have  set  up. 

In  the  next  chapter,  we  shall  see  how  the  tide  beat 
against  that  barrier. 


CHAPTER  XII 

The  Dred  Scott  Case  (1856-1857) 
i.  history  of  the  case  and  its  decision 

On  November  2,  1855,  Mr.  Justice  John  McLean  of 
Ohio,  the  senior  member  of  the  Supreme  Court,  upon 
whose  bench  he  sat  from  1829  until  his  death  in  1864, 
wrote  to  his  friend,  John  Teesdale,  in  Cincinnati, ^  "next 
winter,  a  case  will  be  before  the  Court,  which  involves 
the  right  of  a  slaveholder  to  bring  his  slaves  into  a  free 
State  for  any  purpose  whatever." 

The  Supreme  Court  has  decided  that  slavery  exists,  by  virtue 
of  the  municipal  law,  and  is  local.  The  Constitution  gives  Con- 
gress no  power  to  institute  slavery,  then  there  can  be  no  slavery 
in  the  territories,  for  there  is  no  power  but  Congress  which  can 
legislate  for  the  Territories.  Squatter  sovereignty  is  not  a  part 
of  our  government.  When  a  people  of  a  territory  come  to  form  a 
State  government,  they  have  a  right  to  say  whether  the  State 
shall  be  a  free,  or  a  slave  State.  And  there  is  no  more  danger  of  a 
free  territory  becoming  a  slave  State,  than  there  is  of  a  free  State 
becoming  a  slave  State.  It  is  a  question  which  belongs  to  the 
people  of  a  State,  and  there  is  no  danger  in  leaving  a  territory  open 
to  be  populated  by  the  people  of  the  Union.  More  than  five  will 
settle  it  from  the  free  States,  where  one  settler  will  come  from  the 
slave  States. 

The  question  of  slavery  in  the  territories  was  the  burn- 
ing one  in  politics.  The  passage  of  the  Kansas-Nebraska 
bill  in  1854,  virtually  annulling  the  Missouri  Compro- 
mise and  weakening  the  force  of  the  Compromise  of 
1850,   brought  to  birth   the   Republican   party,   whose 

1  Bibliotheca  Sacra  (1899),  vol.  56,  p.  737. 

326 


ROGER  BROOKE  TANEY  327 

platform  on  the  subject  took  a  position  similar  to  that 
just  quoted  from  McLean.  The  Know  Nothings  and 
the  remnant  of  the  Whigs  vainly  endeavored  to  cling 
to  the  compromises  of  the  past.  The  extreme  Southern 
Democrats  claimed  that  slaves  might  be  taken  into  any 
territory,  while  the  Douglas  Democrats  maintained 
that  the  settlers,  while  the  Territorial  status  still  con- 
tinued, might  exclude,  or  admit  slavery,  as  they  wished, 
through  their  "popular  sovereignty."  The  very  foun- 
dations of  the  Republic  rocked  in  the  conflict,  and  the 
spirit  of  secession  and  disunion,  thought  to  have  been 
exercised  in  1850,  again  raised  its  head. 

Was  it  possible  for  any  power  in  the  country  to  settle 
the  question  finally?  If  any  power  could  do  this,  was 
it  not  the  august  one  of  the  United  States  Supreme 
Court?  At  that  time,  in  addition  to  McLean  and 
Taney,  whose  term  had  begun  in  1836,  there  were  seven 
other  justices,  all  but  one  of  whom  had  been  appointed 
by  Democratic  Presidents.  James  M.  Wayne^  of 
Georgia,  had  been  appointed  in  1833,  and  loyally 
remained  a  member  of  the  Court  throughout  the  Civil 
War,  and  until  his  death  in  1867.  John  Catron  of 
Tennessee  had  been  appointed  in  1837,  and  continued 
on  the  Bench,  until  his  death  in  1865.  Peter  V.  Daniel 
of  Virginia  was  appointed  in  1841,  and  died,  while  still 
on  the  Bench,  in  1860.  Samuel  Nelson  of  New  York 
was  appointed  in  1845,  and  was  the  last  survivor  of  the 
Court  as  constituted  at  this  time,  living  until  1872. 
Robert  G.  Grier  of  Pennsylvania  had  been  appointed  in 
1846  and  continued  as  a  justice,  until  his  death  in 
1869.      Benjamin  R.  Curtis  of  Massachusetts,  the  only 

2  Wayne's  relations  with  Taney  were  especially  intimate.    An  undated 
letter  from  Taney,  addressed  to  Wayne  at  Barnum's  Hotel  is  extant,  requesting 
that  Wayne  take  New  Year's  dinner  with  Taney. 


328  ROGER  BROOKE  TANEY 

Whig  Justice,  had  been  appointed  in  1851  and  resigned 
in  1857.  James  A.  Campbell  of  Alabama  was  the 
youngest  in  point  of  service,  having  been  appointed  in 
1853.  He  was  the  only  Justice  to  join  the  cause  of  the 
Confederate  States  in  1861.  Five  judges  came  from 
Slave  States,  and  four  from  free  States.  As  a  body^  of 
men,  they  have  been  well  characterized  as  "high  and 
capable  men  with  a  high  sense  of  honor,"  but  ''neces- 
sarily swayed  more  or  less  by  their  political  training 
and  sympathies." 

Before  this  tribunal,  there  came  the  case  of  Scott  v. 
Sanford,^  better  known  as  the  Dred  Scott  Case.  Scott 
was  a  negro  slave  of  Dr.  John  Emerson,  a  surgeon  in 
the  United  States  Army,  who  took  him  in  1834  from 
Rock  Island,  Missouri  to  Illinois,  and  two  years  later, 
to  Fort  Snelling,  near  the  present  city  of  St.  Paul, 
Minnesota,  when  ordered  there  on  government  service. 
The  first  place  was  in  the  old  Northwest  Territory,  and 
the  second  was  in  the  Louisiana  Purchase,  north  of  the 
Missouri  Compromise  Line.^  While  in  Minnesota,  Scott 
married  Harriet,  another  slave  belonging  to  Emerson, 
and  had  a  daughter,  Eliza,  born  on  a  steamboat,  north 
of  the  north  boundary  of  Missouri.^ 

After  about  two  years.  Dr.  Emerson  returned  to 
Missouri,   taking  Scott  and  his  family  with  him.     A 

3  Balch  "A  World  Court,"  p.  111. 

^  19  Howard,  also  separately  printed.  The  name  of  the  appellee  is 
usually  printed  erroneously,  Sandford. 

^  The  history  of  the  case  has  been  studied  with  great  care  by  F.  N.  Hill, 
in  his  "Decisive  Battles  of  the  Law."  Harper's  Magazine  for  July,  1907, 
at  page  244.  See  also  8  McMaster's  U.  S.;  p.  278.  Connor's  Life  of  J.  A. 
Campbell,  pp.  54  &ff .  gives  a  careful  study  of  the  case  as  far  as  Campbell  was 
concerned. 

^  Blair,  in  his  Brief  before  the  Supreme  Court,  raised  the  question  of  the 
status  of  this  child,  but  the  Court  made  no  reference  to  it  in  any  of  the  opinions. 
Cf .  Ewing  Legal  and  Historical  Status  of  the  Dred  Scott  Case,  p.  107. 


ROGER  BROOKE  TANEY  329 

second  daughter,  Lizzie,  was  born  to  Scott  and  his 
wife  in  Jefferson  Barracks,  after  the  return.  Some  time 
later,  Dr.  Emerson  died,  in  Davenport,  Iowa,  leaving  his 
property  to  his  wife  in  trust  for  his  child.  Mrs.  Emer- 
son could  not,  therefore,  emancipate  Scott,  who  was  then 
about  thirty-four  years  old  and  she  removed  to  Massa- 
chusetts, leaving  him  in  St.  Louis,  where  he  became  a 
charge  upon  the  bounty  of  Mr.  Taylor  Blow,  who 
was  a  Southern  sympathizer  and  was  a  son  of  Scott's 
old  master  in  Virginia,  who  had  sold  him  to  Dr.  Em- 
erson. At  a  loss  to  know  what  to  do  with  Scott,  it  is 
thought  that  Blow  brought  him  to  the  law  firm  of 
Field  and  Hall,  in  the  hope  that  they  could  find 
some  solution  of  the  difficulty.  They  brought  suit, 
claiming  Scott's  freedom,  and  with  the  probable  ulterior 
purpose  of  paving  the  way  for  a  further  suit  against  the 
Emerson  estate  for  twelve  years'  wages,  if  Scott  had 
been  illegally  held  in  servitude.^  Frederick  T.  Hill 
doubts  whether  Mrs.  Irene  Emerson  would  otherwise 
have  defended  the  suit  brought  against  her  by  this 
wholly  illiterate  negro,  in  the  autumn  of  1846,_upon  tjie,_ 
technical  grounds  of  false  imprisonment  and  assault 
and.  battery.  A  second  suit  by  him  against  Emerson's 
heirs,  was  docketted  in  1847,  as  was  one  brought  by  his 
wife  and  children.  In  April,  1847,  the  Circuit  Court 
Judge  instructed  the  jury  to  bring  in  a  verdict  for  the 
defendant.  A  new  trial  was  granted  by  another  judge, ^ 
and,  on  January,  1850,  a  jury  gave  a  verdict  for  Scott. 
The  Emerson  estate  then  appealed  to  the  State  Supreme 
Court,  and  Scott  was  placed  in  the  hands  of  the  sheriff, 

'4  Hart's  "Am.  Hist,  as  told  by  Contemporaries,"  122,  prints  some  of  the 
papers  in  this  case.     13  Am.  State  Trials  220  also  prints  papers  in  this  case. 

*Vide  11  Mo.  Rep.  413,  for  unsuccessful  appeal  from  order  for  the  new 
trial. 


330  ROGER  BROOKE  TANEY 

to  be  hired  out,  an  account  for  his  wages  being  given  to 
the  successful  party  to  the  suit.  The  payment  of  the 
costs  was  guaranteed  by  a  bond  signed  by  Blow's  son- 
in-law,  Joseph  Charless.  In  March  1852,  the  Missouri 
Supreme  Court  took  up  the  case,^  and  decided  against 
Scott's  freedom.  There  was  a  dissenting  opinion,  and 
Hill  well  writes  that  both  judges  ''displayed  more 
temper  than  erudition."  "The  Court  was  a  small  one, 
numbering  only  three  justices.  Nicolay  and  Hay^^ 
considered  that  the  majority  opinion  bore  internal 
evidence  that  it  was  prompted,  not  by  considerations  of 
law  and  justice;  but  by  a  spirit  of  retaliation,  growing 
out  of  the  ineradicable  antagonism  between  freedom  and 
slavery,"  while  the  dissenting  Judge,  Chief  Justice 
Gamble,  repHed  to  "this  partisan  bravado"  with  a 
"dignified  rebuke." 

Meanwhile,  Mrs.  Emerson  had  remarried,  her  second 
husband  being  Dr.  Calvin  C.  Chaffee  of  Springfield, 
Massachusetts,  an  anti-slavery  member  of  Congress. 
Soon  after  the  final  decision  in  Missouri,  Chauvette 
E.  L.  Beaume,  a  lawyer  related  by  marriage  to  Blow, 
approached  Roswell  M.  Field,  in  reference  to  having  a 
suit  for  freedom  brought  by  Scott  in  the  Federal 
Court.  Field  agreed  to  do  so,  and  to  avoid  bringing 
Mrs.  Chaffee  into  the  case,  the  ownership  of  Scott  was 
transferred  to  her  brother,  John  F.  Sanford  of  New 
York,  whose  name  is  wrongly  spelled  "Sandford,"  by 
the  Reporter.  Suit  was  then  broughtior  assault  against 
S^ford*  in  the  United  StatS""I!ircuit  Court,  federal 
jurisdiction  being  secured,  because  Sanford  did  not  live 
in  Missouri.  This  averment  was  traversed  by  Sanford's 
attorneys  by  a  plea  in  abatement,  denying  that  the 

» It  is  reported  in  15  Mo.  Repts.  582.    See  also  13  Am.  State  Trials  233. 
10  Life  of  Lincoln,  Vol.  II,  p.  61. 


ROGER  BROOKE  TANEY  331 

Court  had  jurisdiction,  on  the  ground  that  Scott  was  a 
descendant  of  an  African  slave  and  born  in  slayery .  The 
Circuit  Court  overruled  the  plea  in  abatement,  but  found 
for  the  defendant  on  the  merits  of  the  case. 

The  case  was  heard  at  the  April  term  of  1854,  and 
in  May  the  Judge  instructed  the  jury  to  bring  verdict 
against  Scott.  An  appeal^^  was  then  filed.  Blow  acting 
as  Scott's  bondsman.  Garland  and  Morris  had  pre- 
viously represented  the  owner,  but  they  were  now 
succeeded  by  Henry  S.  Geyer,  a  native  of  Frederick 
County,  Maryland,  who  had  recently  defeated  Thomas 
H.  Benton  in  a  contest  for  election  to  the  United  States 
Senate,  and  who  was  a  leader  of  the  St.  Louis  Bar. 
"Seeing  how  deeply  the  country  was  interested  in  the 
decision,  "12  Reverdy  Johnson  volunteered  to  assist 
him,  and  they  argued  the  case  for  the  master  before 
the  Supreme  Court. 

On  May  15,  1854,  the  Kansas-Nebraska  Bill  was 
passed,  virtually  repealing  the  Missouri  Compromise. 
On  May  25,  Field  wrote  Montgomery  Blair  that  he 
believed  that  it  would  be  better  for  the  country  to  have 
the  vexed  question  of  slavery  restriction  decided  con- 
trary to  his  wishes,  and  in  favor  of  the  slaveowner,  than 
not  at  all.     On  December  24,  he  wrote  Blair  again: 

A  year  ago,  I  was  employed  to  bring  suit  for  Scott.  The  ques- 
tion involved  is  the  much  vexed  one,  whether  the  removal  by  the 
master  of  his  slave  to  Illinois,  or  Wisconsin,  works  an  absolute 

emancipation If  you,  or  any  other  gentleman  at 

Washington,  should  feel  interest  enough  in  the  case  as  to  bring  it 
to  a  hearing  and  decision  by  the  Court,  the  cause  of  humanity  may 
perhaps  be  subserved,  and,  at  all  events,  a  much  disputed  ques- 
tion would  be  settled  by  the  highest  Court  of  the  nation. 

11  Montgomery  Blair,  see  13  Am.   State  Trials  242,  and  H.  A.  Garland 
signed  the  agreed  statement  of  facts. 
"Tyler,  p.  388. 


332  ROGER  BROOKE  TANEY 

Blair  consented,  but  the  above  given  narrative  shows 
clearly  that  he  and  his  family  were  not  responsible  for 
the  suit,  as  has  been  stated.  The  case  was  argued  at 
the  December  Term  of  1855,  on  February  11,  1856, 
and  was  ignored  by  the  newspapers.  In  the  "discus- 
sions at  the  conferences  of  the  judges"  there  was  "much 
division  among  them,"  we  are  told  by  Justice 
Campbell, ^^  especially  as  to  whether  the  plea  in  abate- 
ment, which  concerned  Scott's  status  as  a  "negro  of 
African  descent,"  whose  ancestors  had  been  imported 
as  slaves,  was  for  consideration.  According  to  Campbell, 
McLean,  Catron,  Grier,  and  Campbell,  forming  a  mi- 
nority of  the  court,  held  that  his  plea  was  not  open  for 
examination,  because  a  demurrer  had  been  sustained 
against  it.  Taney,  Wayne,  Daniel,  and  Curtis  held 
otherwise,  and  Nelson,  who  inclined  to  that  view,  pro- 
posed a  reargument  of  the  case  at  the  next  term,  which 
proposition  was  agreed  to  without  objection. 

On  April  8,  Mr.  Justice  Curtis  wrote  George  Ticknor^'* 
that  "the  Court  will  not  decide  a  question  of  the  Mis- 
souri Compromise — a  majority  of  the  judges  being  of  the 
opinion  that  it  is  not  necessary  to  do  so.  This  is 
confidential."  On  May  12,  1856,  a  reargument  of  the 
case  was  granted. 

"  Letter  of  November  24,  1870.  Tyler,  p.  382.  McHenry  Howard,  Esq., 
on  May  1,  1919,  wrote  that  "S.  Teackle  Wallis  told  me,  about  1875,  that  his 
friend,  George  S.  Hillard,  a  well  known  literary  man  of  Massachusetts,  told  him 
that  on  some  public,  or  semi-public  occasion,  in  New  England,  Justice  Curtis, 
of  the  Supreme  Court,  said  that,  in  the  consultation  over  the  decision  to  be 
rendered  in  the  Dred  Scott  Case,  the  Justices  became  much  excited  and  rose  to 
their  feet,  arguing  and  gesticulating — and  Chief  Justice  Taney  rapped  on  the 
table  and  said:  "Brothers,  this  is  the  Supreme  Court  of  the  United  States. 
Take  your  seats."    "And,"  said  Curtis,  "we  sat  down  like  rebuked  schoolboys." 

14 B.  R.  Curtis  Life,  I,  180.  Howe's  "Political  History  of  Succession," 
Ch.  XV.  treats  of  the  case. 


ROGER  BROOKE  TANEY  333 

Blair  wrote  to  the  Editor  of  the  National  Intelligencer j 
on  December  24,  that  he  had  tried  in  vain  to  gain  another 
distinguished  counsel  to  aid  him  in  the  case.  Finally, 
he  secured  George  Ticknor  Curtis^^  and  he  argued  the 
''question  of  the  power  of  Congress  to  prohibit  slavery 
in  the  Territories,"  as  Justice  Curtis  wrote  George 
Ticknor,  ''in  a  manner  exceedingly  creditable  to  him- 
self and  the  bar  of  New  England.  Judge  Catron  told 
me  it  was  the  best  argument  on  a  question  of  constitu- 
tional law  he  had  heard  in  the  Court — and  he  has  been 
here  since  Jackson's  time. "^^  Curtis  added:  "Our  aged 
Chief  Justice,  who  will  be  eighty  years  in  a  few  days, 
and  who  grows  more  feeble  in  body  but  retains  his 
alacrity  and  force  of  mind  wonderfully,  is  not  able  to 
write  much." 

Blair  forced  the  fighting  on  a  broad  ground  in  his 
brief,  asking  whether  Congress  had  power  to  prohibit 
slavery  in  the  Territories,  or  whether  the  Constitution 
carried  slavery  into  the  Territories.  The  intermediate 
position  of  squatter  sovereignty,  he  declared  to  be  wholly 
ad  captandum,  not  resting  upon  any  basis  recognized 
by  the  Supreme  Court.  The  question  "involves  its 
present  importance,"  to  use  his  words,  "from  the  fact 
that  it  is  felt  to  involve  the  character  of  the  country  as 
a  free  or  slave  country,  and  a  revolution  in  the  ideas  on 

"  George  T.  Curtis  (B.  R.  Curtis,  Life,  I,  249)  wrote  in  after  years  that 
Blair  ''who  had  sole  charge  of  the  case  for  Scott,"  asked  Curtis  to  assist  in  the 
argument,  about  three  days  before  the  case  was  called,  and  that  he  argued  the 
afl5rmative  of  the  proposition  that  Congress  could  prohibit  the  existence  of 
slavery  in  the  territories,  not  discussing  the  other  question  whether  a  free 
negro  could  be  a  citizen.  Curtis's  argument  was  printed,  at  the  request  of 
Crittenden  of  Kentucky  and  Badger  of  North  Carolina,  so  that  he  could 
proudly  remark  that  some  of  the  ablest  minds  in  the  South  did  not  regard  it  as 
supremely  important  to  their  sectional  interests  to  have  the  Missouri  Com- 
promise declared  unconstitutional. 

"B.R.Curtis,  Life,  I,  p.  194. 


334  ROGER  BROOKE  TANEY 

which  the  government  was  formed,  which  must  subvert 
it,  if  acquiesced  in." 

He  discussed  four  questions,  viz.:  (1)  whether  the 
plea  to  the  jurisdiction,  alleging  that  the  plaintiff  was  a 
negro,  and,  therefore,  not  able  to  maintain  a  suit  as  a 
citizen  of  Missouri,  was  waived  by  pleading  to  the  merits, 
after  a  demurrer  sustained;  (2)  whether  a  negro  is  a 
citizen  in  such  a  sense  as  to  enable  him  to  maintain  an 
action  in  the  Courts  of  the  United  States;  (3)  whether 
the  facts  stated  in  the  agreed  case  entitle  the  plaintiff 
and  his  family,  or  either  of  them,  to  freedom;  and  (4) 
whether  the  Missouri  Compromise  is  valid. ^^  He  argued 
these  points  on  December  18,  1856,  and  the  author  of 
B.  R.  Curtis's  Life^^  tells  us  that  Sanford's  counsel  also 
elaborately  argued  the  same^^  points. 

Alexander  H.  Stephens  of  Georgia  was  a  Union  man, 
and  was  anxious  to  settle  the  question  of  slavery  in  the 
territories,  which  was  arousing  the  forces  tending  to- 
ward disunion.  On  December  15,  1856,  he  wrote  his 
brother,  Linton: 

I  have  been  urging  all  the  influence  I  could  bring  to  bear  upon 
the  Supreme  Court  to  get  them  postpone  no  longer  the  case  on  the 
Missouri  restriction  before  them,  but  to  decide  it.^^  They  take 
it  up  today.  If  they  think,  as  I  have  reason  to  believe  they  will, 
that  the  restriction  was  unconstitutional,  that  Congress  had  no 
power  to  pass  it,  then  the  question — the  political  question,  as  I 
think,  will  be  ended  as  to  the  power  of  the  people  in  their  terri- 
torial legislature.  It  will  be  in  effect  a  res  adjudicata.  The 
only  ground  upon  which  that  claim  of  power  can  then  rest  will 

^^  Geyer,  in  his  argument,  maintained  that  a  Territory  was  unappropriated 
land. 

"Vol.  I,  page  206. 

1^  The  text  states  that  he  was  Terry, — does  the  author  mean  Geyer? 

2'^  Johnston  and  Browne's  Stephens,  p.  316.  Harper's  Magazine,  July,  1907, 
p.  251. 


ROGER  BROOKE  TANEY  335 

be  General  Cass's  squatter  sovereignty  doctrine,  i.e.,  that  they 
possess  the  power,  not  by  delegation,  but  by  inherent  right,  and 
you  know  my  opinion  of  that. 

He  wrote  his  brother  again,  on  January  1,  1857: 

Today,  I  send  you  the  speech  of  Curtis  in  the  Dred  Scott  Case 
before  the  Supreme  Court.  The  speech,  I  think  chaste,  elegant, 
forensic,  but  I  do  not  think  it  convincing.  The  case  is  yet  un- 
decided. It  is  the  great  case  before  the  Court,  and  involves  the 
greatest  question  politically  of  the  day.  I  mean  that  the  questions 
involved — let  them  be  decided  as  they  may — will  have  a  greater 
political  effect  and  bearing  than  any  other  of  the  day.  The 
decision  will  be  a  marked  epoch  in  our  history.  I  feel  a  deep 
solicitude  as  to  how  it  will  be.  From  what  I  hear,  sub  rosa,  it  will 
be  according  to  my  own  opinions  on  every  point  as  abstract  politi- 
cal questions.  The  restriction  of  1820  will  be  held  unconstitu- 
tional. The  judges  are  all  writing  out  their  opinions,  I  believe, 
seriatim.  The  Chief  Justice  will  give  an  elaborate  one.  Should 
this  opinion  be  as  I  suppose  it  will,  "Squatter  Sovereignty 
speeches"  will  be  upon  a  par  with  "Liberty  speeches"  at  the 
North  in  the  last  Canvass.^^ 

Stephens  had  true  prescience,  but  he  was  a  little 
ahead  of  time. 

Other  persons  soon  had  the  same  idea.  James  Pike, 
the  Washington  correspondent  for  the  New  York 
Tribune,  wrote  his  newspaper  on  January  5.^2 

The  rumor  that  the  Supreme  Court  has  decided  against  the 
constitutionality  of  the  power  of  Congress  to  restrict  slavery  in 
the  Territories  has  been  commented  upon,  in  the  most  reserved 
manner,  at  this  metropolis.  It  is  very  generally  considered  that 
the  moral  weight  of  such  a  decision  would  be  at  least  equal  to 
that  of  a  political  stump  speech  of  a  slaveholder  or  a  doughface. 


21  Johnston  and  Browne's  Stephens,  p.  318. 
"  Pike,  "First  Blows  of  the  Civil  War,"  p.  355. 


J 


336  ROGER  BROOKE  TANEY ^ 

Many  have  expressed  the  opinion  that  the  question  would  not 
be  met  by  the  Court,  and  numbers  are  still  of  that  way  of  thinking. 
It  makes  but  little  difference  to  slavery  whether  it  gets  a  decision 
in  its  favor,  now,  or  after  the  public  mind  shall  have  had  time  to 
cool  a  little.  But  it  would  be  best  for  antislavery  that  the  de- 
cision should  come  now,  while  the  popular  heart  is  in  a  fused  con- 
dition. The  impression  it  would  make  would  be  deeper  and  more 
distinct  and  the  whole  series  of  proslavery  aggressions  and  triumphs 
would  then  be  burned  into  it  together.  The  Congress,  the  Court, 
and  the  Executive  would  then  take  their  proper  positions  of  joint 
association  in  the  mind  of  the  people,  as  confederates  in  the  work 
of  extending  the  intolerable  nuisance  of  slavery.  It  is,  therefore, 
to  be  preferred  that  the  judicial  department  shall  now  put  itself 
actively  upon  the  side  of  the  slaveholders,  while  the  mind  of  the 
country  is  warm  and  burning,  rather  than  wait  and  do  it  by  and 
by,  when  apathy  shall  have  again  overspread  it.  When  a  politi- 
cal scheme  is  to  be  furthered  by  judicial  action,  it  is  a  thousand 
times  better  that  action  should  be  taken  boldly;  when  every  man, 
woman,  and  child  have  their  eyes  upon  the  Court,  than  to  have  that 
body  steal  silently  and  stealthily  in  the  same  direction.  Judicial 
tyranny  is  hard  enough  to  resist  under  ordinary  circumstances, 
for  it  comes  in  the  guise  of  impartiality  and  with  the  prestige  of 
fairness. 

At  first,  however,  the  Court  determined  not  to  make 
a  broad  decision,  but  merely  to  decide  the  case  on 
narrow  grounds,  and  Justice  Nelson  was  asked  to  write 
the  opinion,  limiting  it  to  the  "particular  circumstances" 
of  Dred  Scott.^^  Wayne,  who  like  Stephens,  was  a 
Georgian,  became  convinced,  probably  by  his  efforts 
after  the  second  hearing,  that  the  Supreme  Court  could 
quiet  all  agitation  on  the  question  of  slavery  in  the 
Territories,  by  afifirming  that  Congress  had  no  power  to 
prohibit  it  there. ^^     ''With  entirely  patriotic  motives, 

23  Tyler,  p.  384. 

24  Curtis's  Life,  I.  206. 


ROGER  BROOKE  TANEY  337 

and  believing  thoroughly  that  such  was  the  law  on  this 
constitutional  question,  he  regarded  it  as  eminently 
expedient  that  it  should  be  so  determined  by  the  Court. 
His  frank  avowals  in  conversation  at  the  time,"  showed 
"that  he  regarded  it  as  a  matter  of  great  good  fortune 
to  his  own  section  of  the  country  that  he  had  succeeded 
in  producing  a  determination  on  the  part  of  a  sufficient 
number  of  his  brethren  to  act  upon  the  constitutional 
question,  which  had  so  divided  the  people."  He 
persuaded  Taney,  Grier,  and  Catron  to  take  this  view. 
Wayne's  urgency  on  the  other  justices  was  great,  and 
he  **  particularly  suggested  "^^  to  Catron  the  ground 
upon  which  he  concurred — that  the  Missouri  Compro-  xj 
mise  conflicted  with  the  Louisiana  Treaty.  Campbell 
and  Nelson  wrote, ^^  in  after  years,  that,  after  Nelson 
had  written  his  opinion  and  in  his  absence, ^'^  Wayne, 
without  giving  notice  to  anyone,  stated  in  the  consulta- 
tion room  ''that  the  case  had  created  public  interest 
and  expectation,"  and  "proposed  that  the  Chief  Justice 
write  an  opinion  on  all  of  the  questions,  as  the  opinion 
of  the  Court. "  This  proposal  was  assented  to.  Nelson, 
however,  refused  to  agree  to  this  plan,  and,  when  told 
of  it,  "gave  notice"  that  he  would  read,  as  his  own,  the 
opinion  he  had  written  as  that  of  the  Court.  Pressure 
from  both  sides  urged  the  Court  on,  however,  and  it 
transpired  that  Justice  McLean  was  taking  a  broad 
ground  in  his  expected  dissenting  opinion,  and  would 
give  comfort  to  the  anti-slavery  forces.  Reverdy 
Johnson,  in  a  letter,  dated  March  6,  1858,  written  to  a 
public  meeting,28  claimed  that  the  course  of  the  dissent- 

25  Curtis's  Life,  I,  234.     See  CampbeU  on  Curtis  in  20  Wallace.    Wayne's 
papers  have  been  destroyed. 
2«  Tyler,  p.  384. 
"  Tyler,  p.  385. 
28  B.  R.  Curtis,  Life,  I,  237.Tyler,  p.  390. 


338  ROGER  BROOKE  TANEY 

ing  justices  made  it  the  duty  of  the  court  to  correct, 
to  the  whole  extent  of  their  power,  what  they  beheved 
to  be  the  serious  constitutional  errors,  which,  if  left 
unobstructed,  would  be  fastened  upon  the  government. 
James  Buchanan  had  been  elected  President  in  the 
preceding  November,  and,  on  February  19,  his  old 
friend,  Mr.  Justice  Catron,  wrote  him  that  the  case 
had  been  before  the  Justices  several  times  within  the 
past  week,  and  that  Buchanan  might  safely  say  in  his 
inaugural  address  that: 

The  question  involving  the  constitutionality  of  the  Missouri 
Compromise  line  is  presented  to  the  appropriate  tribunal  to 
decide  (to  wit  the  Supreme  Court  of  the  United  States).  It  is 
due  to  its  high  and  independent  character  to  suppose  that  it 
will  decide  and  settle  a  controversy  which  has  so  long  and  so 
seriously  agitated  the  country  and  which  must  ultimately  be  de- 
cided by  the  Supreme  Court.  And  until  the  case  now  before 
it  ....  is  disposed  of,  I  would  deem  it  improper  to  express 
any  opinion  on  the  subject.^^ 

Catron  continued  his  letter  that  *'a  majority  of  my 
Brethren  will  be  forced  up  to  this  point  by  two  dis- 
sentients" and  asked  Buchanan  to  write  Mr.  Justice 
Grier,  who,  like  the  President  elect,  was  a  citizen  of 
Pennsylvania,  ''saying  how  necessary  it  is  and  how  good 
the  opportunity  is  to  settle  the  agitation,  by  an  affirma- 
tive decision  of  the  Supreme  Court,  the  one  way  or  the 
other.  He  ought  not  to  occupy  so  doubtful  a  ground  as 
the  outside  issue — that  admitting  the  constitutionality 
of  the  Missouri  Compromise  line  of  1820,  still,  as  no 
domicile  was  acquired  by  the  negro  at  Fort  Snelling  and 
he  returned  to  Missouri,  he  was  not  free.  He  has  no 
doubt  about  the  question  on  the  main  contest,  but  has 

**  Buchanan's  Works,  X,  106.    I  cannot  find  Justice  Catron's  papers. 


ROGER  BROOKE  TANEY  339 

been  persuaded  to  take  the  smooth  handle  for  the  sake 
of  peace." 

Buchanan  wrote  to  Grier  at  once,  as  Catron  requested, 
and  received  an  answer  dated  February  23.^^  Buchan- 
an's letter  had  reached  him  on  that  day,  and  he  had 
shown  it  to  Wayne  and  Taney:  "We  fully  appreciate 
and  concur  in  your  views  as  to  the  desirableness,  at 
this  time,  of  having  an  expression  of  the  opinion  of 
this  Court,  on  this  troublesome  question.  With  their 
concurrence,  I  will  give  you,  in  confidence,  the  history 
of  the  case  before  us,  with  the  probable  result. "  Owing 
to  the  illness  of  a  judge,  the  case  had  only  lately  been 
taken  up  in  conference.  The  first  question  was  as  to 
the  right  of  a  negro  to  sue  in  the  Courts  of  the  United 
States.  "The  majority  of  the  Court  were  of  the  opinion 
that  the  question  did  not  arise  on  the  pleadings  and  that 
we  were  not  compelled  to  give  an  opinion  on  the  matter. 
After  much  discussion,  it  was  finally  agreed  that  the 
merits  of  the  case  might  be  satisfactorily  decided  without 
giving  an  opinion  on  the  question  of  the  Missouri 
Compromise,  and  the  case  was  committed  to  Justice 
Nelson  to  write  the  opinion  of  the  Court,  affirming  the 
judgment  of  the  court  below,  but  leaving  both  those 
difficult  questions  untouched."  Then  it  appeared  that 
the  two  dissentients,  especially  Mc  Lean,  "were  deter- 
mined to  come  out  in  long  and  labored  dissent,  includ- 
ing their  opinions  and  arguments  on  both  these 
troublesome  points,  although  not  necessary  to  a 
decision  of  the  case.  In  our  opinion,  both  these  points 
are  in  the  case,  and  may  be  decided."  The  majority 
felt  now  compelled  to  express  an  opinion  upon  the 
"powers  of  Congress  and  the  validity  of  the  Compro- 
mise."    Nelson  and  Grier  had  refused  to  commit  them- 

30  Buchanan's  Works,  X,  p.  106.    I  cannot  find  Grier's  papers. 


340  ROGER  BROOKE  TANEY 

selves.  "The  majority,  including  all  the  judges  south 
of  Mason  and  Dixon's  line,  agreeing  in  the  result,  but 
not  in  their  reasons,  as  the  question  will  be  thus  forced 
upon  us,  as  I  am  anxious  that  it  should  not  appear  that 
the  line  of  latitude  should  mark  the  line  of  division  in 
the  Court,  I  feel  also  that  the  opinion  of  the  majority 
will  fail  of  much  of  its  effect,  if  founded  on  clashing  and 
inconsistent  arguments. "  Consequently,  Grier  had  con- 
versed with  Taney  and  had  decided  to  concur  with  him. 
He  and  Wayne  would  endeavor  to  have  Daniel,  Catron, 
and  Campbell  do  the  same: 

So  that,  is  the  question  must  be  met,  there  will  be  an  opinion  of 
the  Court  upon  it,  if  possible,  without  the  contradictory  views 
which  would  weaken  its  force.  But,  I  fear,  some  rather  extreme 
views  may  be  thrown  out  by  some  of  our  Southern  Brethren. 
There  will,  therefore,  be  six,  if  not  seven  (perhaps  Nelson  will 
remain  neutral)  who  will  decide  the  compromise  law  of  1820  to 
be  of  none  effect.  But  the  opinions  will  not  be  rendered  before 
Friday,  the  sixth  of  March.^^  We  will  not  let  any  others  of  our 
brethren  know  anything  about  the  cause  of  our  anxiety  to  produce 
this  result,  and,  though  contrary  to  our  usual  practice,  we  have 
thought  it  due  to  you  to  state  to  you,  in  candor  and  in  confidence, 
the  real  state  of  the  matter. 

On  February  27,  Mr.  Justice  Curtis  wrote  a  true 
forecast  of  events  to  his  uncle,  George  Ticknor,  who  was 
then  in  Europe:  "The  North  is  now  quiet^^  after  a 
sectional  excitement  such  as  was  never  before  known; 
but  I  am  greatly  mistaken  if  events  do  not  arouse  it 
again  to  an  exertion  to  overthrow  what  is  called  the 
'slave'  power,  even  greater  than  that  recently  made." 

'^  The  weak  state  of  Taney's  health  caused  the  postponement  of  the  deci- 
sion, A  recent  article  in  52  Am.  Law  Rev.  875,  by  Henry  S.  Forster,  is  entitled 
"Did  the  Decision  in  the  Died  Scott  Case  Lead  to  the  Civil  War"  and  repro- 
duces this  correspondence. 

32  Curtis,  Life,  I,  p.  193. 


ROGER  BROOKE  TANEY  341 

He  was  right,  and  the  Supreme  Court  was  destined  to 
liberate  the  genie  from  the  bottle. 

Rumors  spread  as  to  the  purport  of  the  coming  de- 
cision, and,  on  March  2,  the  New  York  Tribune, ^^  from 
a  "trustworthy  source,"  predicted  that  the  decision 
by  a  large  majority  would  "sustain  the  extreme  Southern 
ground,"  denying  the  constitutionality  of  the  Missouri 
Compromise  and  that  McLean  and  Curtis  would  be 
the  only  dissenters. 

Buchanan  brought  his  inaugural  address  with  him 
to  Washington,  and,  after  his  arrival  at  the  National 
Hotel  there,  made  "no  alterations"^'^  except  to  insert 
"a  clause  in  regard  to  the  question  then  pending  in  the 
Supreme  Court,  as  one  which  would  dispose  of  a  vexed 
and  dangerous  topic  by  the  highest  judicial  authority 
of  the  land."  When  he  read  his  address  on  March  4, 
he  said:  "A  difference  of  opinion  has  arisen  in  regard 
to  the  point  of  time,  when  the  people  of  a  Territory  shall 
decide"  as  to  the  admission  of  slavery  for  themselves. 

This  is,  happily,  a  matter  of  little  practical  importance,  Be- 
sides it  is  a  judicial  question  which  legitimately  belongs  to  the 
Supreme  Court  of  the  United  States,^^  before  whom  it  is  now  pend^ 
ing  and  will,  it  is  understood,  be  speedily  and  finally  settled.  To* 
their  decision,  in  common  with  all  good  citizens,  I  shall  cheerfully 
submit,  whatever  this  may  be,  though  it  has  ever  been  my  indi- 
vidual opinion  that,  under  the  Nebraska-Kansas  Act,  the  ap- 
propriate period  would  be  when  the  number  of  actual  residents 
in  the  Territory  shall  justify  the  formation  of  a  constitution,  with 
a  view  to  its  admission  as  a  State  into  the  Union. 


33  Rhodes,  II,  269. 

34  Letter  of  Buchanan's  nephew,  James  Buchanan  Henry,  to  George  T^ 
Curtis,  in  Curtis's  Buchanan,  II,  187. 

36  Buchanan's  Works,  X,  106. 


342  ROGER  BROOKE  TANEY 

This  statement  was  one  which  almost  anyone  could 
have  made  who  read  the  daily  newspapers  and  any 
further  information  which  Buchanan  had,  came  from 
Catron  and  Grier;  yet,  after  the  decision,  an  unfounded 
and  rather  ridiculous  charge  of  conspiracy  between 
Taney  and  Buchanan  was  made  by  anti-slavery  leaders, 
such  as  Lincoln.  It  was  even  felt  necessary  by  Stephen 
A.  Douglas,  publicly,  to  deny  that  he  had  talked  with 
Taney  concerning  the  decision,  before  it  was  delivered. ^^ 

Mr.  Justice  Curtis  never  gave  countenance  to  this 
charge, ^^  and  Rhodes,  an  unfriendly  critic, ^^  admits  that 
the  characters  of  Buchanan  and  Taney  are  proofs  that 
*'the  import  of  the  decision"  was  not  communicated 
by  the  Chief  Justice  to  the  President  elect,  and  that, 
with  the  former's  "lofty  notions  of  what  belonged  to  an 
independent  judiciary,  he  would  have  had  no  intercourse 
with  the  executive  that  could  not  brook  the  light  of 
day." 

Reverence  for  the  Supreme  Court  had  never  been 
higher  than  at  the  moment  of  the  decision.  On  the 
very  day  of  the  inauguration,  Caleb  Cushing,  the 
Attorney  General,  thus  addressed  the  tribunal:  **You 
are  the  incarnate  mind  of  the  political  body  of  our 
nation."  You  are  "the  pivot,  upon  which  the  right 
of  all — government  and  people  alike — turn:  or  rather, 
you  are  the  central  light  of  constitutional  wisdom, 
around  which  they  perpetually  revolve.  "^^  With  such 
incense  in  their  nostrils,  there  is  little  cause  for  wonder 

'^  Lincoln's  Works,  I,  243  at  Springfield,  111.,  before  Republican  convention 
which  nominated  him  for  Senator,  293, 303;  at  Ottawa,  Illinois,  August  21, 1858, 
joint  debate  with  Douglas,  419;  at  Quincy,  Illinois,  in  joint  debate  496.  For 
disproof,  if  needed,  see  Tyler,  p.  383  and  ff . 

»7  Life,  I,  236. 

»8  History,  II,  269. 

''  Nicolay  and  Hay's  Lincoln,  vol.  II,  p.  70. 


ROGER  BROOKE  TANEY  343 

that  Taney  and  the  other  majority  justices  believed, 
mistakenly,  that  the  "public  excitement"  in  reference 
to  slavery  in  the  Territories  could  be  quieted  by  a  judicial 
decision,  and  that  they,  though  "required  only  to  decide 
a  question  of  private  rights,"  rejecting  for  the  occasion 
the  sound  rule  of  not  mingling  in  political  questions, 
should  "thrust  themselves  forward  to  sit  as  umpires 
in  a  quarrel  of  parties  and  factions.  "''^ 

On  the  fifth  of  March,  Pike,  in  writing  to  the  Tribune, 
thus  referred  to  Buchanan's  speech  i"^^ 

This  policy  of  planting  the  Federal  Government  on  the  side 
of  an  open,  undisguised,  entire  devotion  to  the  interests  of  slavery 
and  demanding  conformity  thereto  of  all  participants  in  its  ad- 
ministration, has  been  gradually  forcing  its  way,  through  fogs  and 
murky  darkness,  its  existence  doubted  and  denied,  whenever  par- 
tisan interest  required  the  denial;  until,  at  last,  this  policy  bursts 
upon  the  country  and  upon  the  world  in  the  unaugural  of  Mr. 
Buchanan  and  in  the  coming  decision  of  the  Supreme  Court  upon 
the  right  of  Congress  to  restrict  slavery  in  the  territory,  with  a 
distinctness  and  clearness  as  impressive  and  alarming  as  it  is 
vivid. 

Taney's  opinion  was  somewhat  modified  after  it  was 
read.  In  this  present  form,  it  covers  60  of  the  Reporter's 
pages  devoted  to  this  case.  Corwin  correctly  states 
that  what  Taney  wrote  was  "absurdly  labeled"  the 
Court's  opinion,  for,  on  most  points  of  argument,  there 
was  no  majority  of  the  Court. '^^  Before  the  decision 
was  pronounced, ''^  "Taney,  both  in  character  and 
ability,"  in  Rhodes's  opinion,  "stood  much  higher  than 
any    other    member    of    the     court The 

"  Curtis'  Life,  I,  236.    Nicolay  and  Hay's  Lincoln,  II,  7 L 
«  "  First  Blows  of  the  Civil  War,"  p.  366. 
*2  Doctrine  of  Judicial  Review,  p.  132. 
«  Rhodes'  History  of  U.  S.,  II,  254  to  266. 


344  ROGER  BROOKE  TANEY 

bait  held  out  to  his  patriotic  soul  was  that  the  court 
had  the  power  and  opportunity  of  settling  the  slavery 
question."  His  "opinion  shows  no  weakness  of  mem- 
ory,  or  abated  powers  of  reasoning That 

a  man  of  the  years  of  Taney  could  construct  so  vigorous 
and  so  plausible  an  argument  was  less  remarkable  than 
that  a  humane  Christian  man  could  assert  publicly  such 
a  monstrous  theory.  Yet  such  work  was  demanded  by 
slavery  of  her  votaries.  The  opinion  of  Taney  was  but 
the  doctrine  of  Calhoun  announced  for  the  first  time 
in  1847,"^^  which  "outraged  precedent,  history,  and 
justice."  Taney  "committed  a  grievous  fault,"  in 
taking  a  step  which  undermined  "the  very  foundations 
of  the  State."  "Patriotism  and  not  selfseeking  im- 
pelled him, "  yet  "the  higher  motive  does  not  excuse  the 
Chief  Justice."  His  "argument  impressed"  Rhodes 
"with  its  power.  It  is  inhuman.  It  was  effectually 
refuted.  But  it  was  a  great  piece  of  specious  reasoning, 
and,  translated  by  Douglas  into  the  language  of  the 
stump,  it  made  the  staple  argument  of  Northern  Demo- 
crats from  this  time  to  the  war." 

Taney  found  two  leading  questions  in  this  contro- 
versy, of  the  highest  importance.  First,  had  the  Circuit 
Court  Jurisdiction,  and  second,  if  so,  was  its  judgment 
erroneous?  He  refused  to  admit  that  the  plea  in  abate- 
ment was  not  before  the  Court,  as  the  judgment  thereon, 
in  the  Court  below,  was  in  Scott's  favor,  and  held  that 
Sanford  had  waived  that  defence,  by  pleading  to  the 
merits. 

The  "peculiar  and  limited  jurisdiction"  of  the  United 
States  Courts  had  to  be  considered,  for  the  Government 
of  the  United  States  is  "sovereign  and  supreme  in  its 
appropriate  sphere  of  action,  yet  it  does  not  possess  all 

"  See  Cong.  Globe  for  February  19,  1847,  p.  455  and  App.  1848,  p.  1178. 


ROGER  BROOKE  TANEY  345 

the  powers  which  usually  belong  to  the  sovereignty 
of  a  nation."  Consequently,  the  record  must  show 
affirmatively,  that  the  Circuit  Court  had  jurisdiction. 

The  writ  of  error  brought  up  the  whole  record  of  the 
proceedings  in  the  Court  below,  and  so  the  plea  in 
abatement  was  before  the  Supreme  Court.  Taney, 
therefore,  asked  whether  a  negro  can  "become  entitled 
to  all  the  rights  and  privileges  and  immunities 
guaranteed"  by  the  Constitution  to  citizens,  including 
the  privilege  of  suing  in  the  Federal  Courts?  Taney 
distinguished  the  status  of  negroes  from  that  of  Indians, 
whose  "freedom  has  constantly  been  acknowledged." 
The  phrase,  "people  of  the  United  States,"  familiarly 
called  "the  sovereign  people, "  Taney  held  to  be  synony- 
mous with  citizens.  Every  citizen  is  a  constituted 
member  of  this  sovereignty. " /The  negroes  are  not 
included,  and  were  not  intended  by  the  Constitution 
to  be  included  in  "the^eople;"  but  were  considered  a 
"subordinate  and  inferior  race  of  beings,  who  had  been 
subjugated  by  the  dominant  race,  and,  whether  eman- 
cipated or  not,  yet  remained  subject  to  their  author- 
ity, and  had  no  rights  or  privileges,  but  such  as  those 
who  held  the  power  and  the  government  might  choose 
to  grant  them^ 

Taney  next  showed  how  his  inveterate  Federalism 
had  blended  itself  with  his  pro-slavery  arguments,  for 
he  distinguished  State  citizenship  from  that  in  the 
United  States  and  held  that  "it  does  not,  by  any  means, 
follow,  because  he  had  all  the  rights  and  privileges  of  a 
citizen  of  a  State,"  that  any  man  "must  be  a  citizen 
of  the  United  States,"  so  as  to  be  entitled  to  the  rights 
and  privileges  of  a  citizen  in  any  other  State.  Before 
the  adoption  of  the  Federal  Constitution,  each  State 
made  its  citizens,  and  it  may  still  "confer  on  whom- 


346  ROGER  BROOKE  TANEY 

soever  it  pleased  the  character  of  citizen"  and  "endow 
him  with  all  its  rights,"  even  though  he  be  an  alien, 
yet  "he  would  not  be  a  citizen,  in  the  sense  in  which 
that  word  is  used  in  the  Constitution  of  the  United 
States."  The  provision  that  the  Federal  Government 
should  establish  an  uniform  rule  of  naturalization, 
proved,  to  Taney's  mind,  the  proposition  that  there 
was  a  National  citizenship.  It  was  "very  clear"  to 
him  "that  no  State  can,  by  a  law  made  since  the  Con- 
stitution,^^  introduce  a  new  member  into  the  political 
community  created  by  the  Constitution  of  the  United 
States.  It  cannot  make  him  a  member  of  this  com- 
munity, by  making  him  a  member  of  its  own,  and,  for 
the  same  reason,  it  cannot  introduce  any  person,  or 
description  of  persons,  who  were  not  intended  to  be 
embraced  in  this  new  political  family,  which  the  Con- 
stitution brought  into  existence,  but  were  intended  to 
be  excluded  from  it." 

He  then  adds:  "  Does  the  Federal  Constitution,  when- 
ever a  negro"  shall  be  made  free  under  the  laws  of  a 
State,  "raise  him"  to  the  rank  of  a  citizen,  and,  im- 
mediately, clothe  him  with  all  the  privileges  of  a  citizen 
in  every  other  State  and  in  its  own  Courts?  The 
"Court  thinks,"  was  Taney's  reply,  "the  affirmative  of 
these  propositions  cannot  be  maintained,  and,  if  it 
cannot,"  the  plaintiff  was  not  a  citizen  of  the  State  of 
Missouri,  and  so  could  not  sue  in  the  United  States 
Courts. 

It  was  true  that  "every  person,  and  every  class  and 
description  of  persons,  who  were,  at  the  time  of  the 
adoption  of  the  Constitution,  recognized  as  citizens  of 

^  Page  12.  McHenry  Howard,  Esq.,  states  that  his  father,  Charles  Howard, 
who  married  Mrs.  Taney's  niece,  stated  that  Taney  wrote  the  headnotes  to 
the  Dred  Scott  Case. 


ROGER  BROOKE  TANEY 


347 


the  several  States,  became  also  citizens  of  this  new 
political  body;"  but  Taney  held  that  the  "legislation 
and  history  of  the  times  and  the  language  used  in  the 
Declaration  of  Independence  show  that,  neither  the 
class  of  persons  who  had  been  imported  as  slaves,  nor 
their  descendants,  whether  they  had  become  free  or  not, 
were  then  acknowledged  as  a  part  of  the  people."  He 
then  endeavored  to  prove  this  startling  assertion.  It 
was  unprovable.  Taney  was  a  feeble,  old  man,  had  no 
great  amount  of  time  for  research,  and  had  collected 
little  evidence  of  his  assertion.  He  stated  that,  for  more 
than  a  century,  before  the  Declaration  of  Independence 
and  the  Constitution  were  adopted,  negroes  had  "been 
regarded  as  beings  of  an  inferior  order,  and  altogether 
unfit  to  associate  with  the  white  race,  either  in  social, 
or  political  relations,  and,  so  far  inferior,  that  they  had 
no  rights  which  the  white  man  was  bound  to  respect, 
and  that  the  negro  might,  justly  and  lawfully,  be  reduced 
to  slavery  for  his  benefit." 

The  phraseology  was  unfortunate,  and  the  sentiment 
false  and  inhuman,  though  it  was  uttered  by  a  humane 
and  truthful  man.  The  people  of  the  Northern  States 
forgot  the  language  of  the  rest  of  the  opinion,  and  re- 
peated, in  horror  struck  tones,  that  Judge  Taney  believed 
that  the  negro  "had  no  rights  which  the  white  man  was 
bound  to  respect,"  a  statement  which  was  rather  unfair 
toward  Taney,  but  which  became  an  effective  weapon 
against  slavery. ^^  Taney's  statement  was  inaccurate 
as  to  history  and  law,  and  Curtis  soon  showed  its  mani- 
fest untruth;  but  even  had  it  been  true,  it  would  have 

■^^  Cf.  Rhodes,  II,  265.  Taney  had  no  prejudice  against  negroes,  and  said 
to  a  friend:  "Thank  God  that  at  least  in  one  place  all  men  are  equal — in  the 
Church  of  God.  I  do  not  consider  it  any  degradation  to  kneel  side  by  side 
with  a  negro  in  the  house  of  our  Heavenly  Father,"  J.  A.  Walter,  in  Century 
Magazine,  1883,  p.  958. 


1/ 


5f 


i.r-^ 


348  ROGER  BROOKE  TANEY 

been  **  unwise  and  unchristian  to  embody  it  in  such  a 
sentence. "^^  It  was  a  "grievous  fault,"  and  grievously 
did  its  author  answer  it.  Reverdy  Johnson,  in  his 
remarks  at  the  meeting  of  the  Bar  after  Taney's  death, 
defending  his  friend,  said  that  ''Taney  mentioned  the 
fact,  not  to  justify,  but  to  deplore  it."'^^  I  can  find  no 
evidence  of  this  deploring  in  Taney's  words. 

Taney  thus  continued  his  cold,  unemotional  state- 
ment: "He  was  brought  and  sold  and  treated  as  an 
ordinary  article  of  merchandise  and  traffic,  whenever 
a  profit  could  be  made  from  it.  This  opinion  was,  at 
that  time,  fixed  and  universal  in  the  civilized  portion 
of  the  white  race.  It  was  regarded  as  an  axiom  in 
morals,  as  well  as  in  politics,  which  no  one  thought  of 
disputing,  or  supposed  open  to  dispute." 

What  proofs  did  Taney  bring  of  this  sweeping  state- 
ment? Grossly  inadequate  ones.  In  Massachusetts,  a 
negro  was  whipped  who  hit  a  white  man,  and,  in  Mary- 
land, and  in  Massachusetts,  intermarriage  between 
whites  and  blacks  was  forbidden.  No  stronger  proofs 
were  adduced.  These  instances  showed  the  "degraded 
condition  of  this  unhappy  race"  and  that  a  "per- 
petual and  impassible  barrier  was  intended  to  be 
erected"  between  the  two  races,  which  statement 
might  well  be  true,  and  yet  not  prove  Taney's  point — 
that  the  negro  had  not  rights.  He  was  correct,  of  course, 
in  stating  that  the  ^^  enslaved  African  race  were  not 
intended  to  be  included  "  in  the  words  of  the  Declaration 
of  Independence  that  "all  men  are  created  equal;" 
but  this  fact  does  not  show  that  free  negroes  were  ex- 
cluded from  that  political  equality. 

*^  Nicolay  and  Hay,  II,  77. 

«Vide  Tyler,  p.  494.  Century  Magazine,  1883,  p.  957-8,  prints  letters 
by  J.  A.  Walter  and  Courtenay  De  Kalb,  defending  Taney's  use  of  the  phrase 
that  negroes  "had  no  rights  which  the  white  man  was  bound  to  respect." 


ROGER  BROOKE  TANEY  349 

His  next  argument  was  that  the  foreign  slave  trade 
and  fugitive  slave  provisions  of  the  Federal  Constitution, 
show  that  negroes  "were  not  regarded  as  a  portion  of  the 
people,  or  citizens  of  the  government  then  formed," 
but  this  seems  a  non  sequitur.  Because  negro  slaves 
had  certain  treatment,  it  does  not  follow  that  negro 
freemen  were  not  citizens,  nor  is  it  "obvious, "  as  Taney 
wrote,  "that  they  were  not  in  the  minds  of  the  framers 
of  the  Constitution,"  when  they  gave  rights  to  the  citi- 
zens of  one  State  within  the  limits  of  another.  An 
unworthy  and  illogical  slur  upon  New  England  followed, 
when  Taney  stated  that  it  could  hardly  be  supposed  that 
in  the  States  whose  citizens  engaged  in  the  slave  trade, 
"the  people  could  have  regarded  those  who  were  eman- 
cipated, as  entitled  to  equal  rights  with  themselves." 
The  history  of  the  freedmen  in  Rome,  was  an  answer  to 
this  statement. 

Then  Taney  took  up  the  State  laws  as  proving  his 
point,  forgetting  that  in  his  own  state,  negroes  were 
voters  in  his  youth. ^^  In  Kentucky,  a  Court  had 
decided  that  a  free  negro  was  no  citizen.  Connecticut,^'' 
up  to  the  time  of  adopting  the  Constitution,  had  nothing 
in  her  legislation  "indicating  that  it  meant  to  place" 
negroes,  when  free,  upon  a  level  with  its  citizens — 
surely  a  lame  argument.  He  showed  that  there  was  a 
popular  prejudice  against  negroes  in  Connecticut,  as 
manifested  in  the  case  of  Miss  Prudence  Crandall,  as  if 
popular   prejudice   had    the    force   of   law.^^     In    New 

49  Steiner's  "Citizenship  and  Suffrage  in  Maryland,"  27,  29,  31. 

^"Larned  (15  New  Eng.,  p.  513)  shows  that  a  Connecticut  law  of  1774, 
(which  was  a  re-enactment  of  one  of  1702),  which  dealt  with  all  vagrant  or 
suspected  persons,  showed  that,  if  free  negroes  were  associated  with  slaves 
under  the  law,  they  were  also  associated  with  white  vagrants,  no  race  distinc- 
tion being  made.     Free  negroes  voted  in  Connecticut  until  1818. 

"Larned,  in  15  New  Englander  515,  showed  that  there  was  no  legal 
decision  here  to  support  Taney's  opinion. 


350  ROGER  BROOKE  TANEY 

Hampshire,  only  free,  white  citizens  were  allowed  in  the 
militia,  so  the  negro  "forms  no  part  of  the  sovereignty 
of  the  State."  One  may  reply  that  no  more  do  men 
above  military  age,  yet  their  citizenship  continues. 
Rhode  Island  forbade  intermarriage  of  the  races,  and 
Chancellor  Kent  said  that,  only  in  Maine,  did  "negroes 
participate,  equally  with  the  whites,  in  the  exercise  of 
civil  and  political  rights."  It  will  hardly  be  believed 
that  this  pitifully  meagre  array  of  evidence  was  all  that 
Taney  presented. ^^  Yet  from  that  paltry  evidence,  he 
made  the  broad  assumption  that  "it  is  hardly  consistent 
with  the  respect  due  to  the  States,  to  suppose  that  they 
regarded,  at  that  time,  as  fellow  citizens  and  members 
of  the  sovereignty,  a  class  of  beings  whom  they  had 
thus  stigmatized,  or  that  the  slave-holding  States  would 
have  consented  to  a  Constitution  which  might  compel 
them  to  receive  negroes  as  citizens  from  another  state 
and  so  be  exempt  from  police  regulations."  The 
answers  to  this  latter  statement  are  that  no  one  expected 
any  extensive  migration  of  negroes,  and  that  "police 
regulations"  of  all  citizens  of  a  State  remained  in  the 
hands  of  its  authorities;  after  the  adoption  of  the  Con- 
stitution, just  as  before  that  time.  "This  want  of 
foresight  and  care"  by  the  framers  of  the  Constitution, 
probably  occurred,  even  though  Taney  thought  it 
"would  have  been  utterly  inconsistent  with  the  caution 
displayed  in  providing  for  the  admission  of  new  members 
into  the  political  family"  by  naturalization.  The 
Constitution,  undoubtedly,  gave  to  Congress  the  sole 
power  to  confer  citizenship  on  those  born  in  foreign 

^2  Sumner  noted  (works  v.  179)  in  1860,  that  the  Constitution  of  Missouri 
said  free  white  male  citizens,  implying  that  there  might  be  colored  citizens 
and  that  certain  sections  of  the  Alabama  Code  stated  that  they  did  not  affect 
"a  free  person  of  color,  who,  by  the  treaty  between  the  United  States  and 
Spain,  became  a  citizen  of  the  United  States,  or  the  descendants  of  such!" 


ROGER  BROOKE  TANEY  351 

countries. ^^  In  the  Articles  of  Confederation,  the  words 
"free  inhabitants,"  did  not  include  negroes,  according 
to  Taney's  contention;  since  requisitions  for  soldiers  in 
the  Revolution  were  made  on  the  States  in  proportion 
to  the  number  of  ' '  white  inhabitants.  "^^  It  is  impossible 
to  follow  Taney,  when  this  fact  causes  him  to  exclaim: 
"Words  could  hardly  have  been  used  which  more 
strongly  mark  the  line  of  distinction  between  the  citizen 
and  the  subject,  the  free,  and  the  subjugated  races!" 

Naturalization  is  only  for  free  white  persons,  since 
Citizenship,  when  the  Constitution  was  adopted,  "was 
perfectly  understood  to  be  confined  to  the  white  race, 
and  that  they  alone  constituted  the  sovereignty  of 
government."  Then  he  destroys  the  force  of  his  argu- 
ment, that  admitting  that  Congress  might  naturalize 
negroes  and  certainly  might  have  naturalized  Indians, 
had  they  not  been  too  cruel,  and  that  no  one  thought 
that  they  would  ask  for  citizenship. 

Then  Taney  groups  certain  laws  as  further  proofs 
that,  "to  call  persons  thus  marked  and  stigmatized, 
citizens  of  the  United  States — fellow  citizens — a  con- 
stituent part  of  the  sovereignty,  would  be  an  abuse  of 
terms,  and  not  calculated  to  exalt  the  character  of  an 
American  citizen  in  the  eyes  of  other  nations."  These 
laws  were  the  militia  law  of  1792,  which  said  that  only 
"free  able-bodied  white  male  citizens "^^  should  serve; 
the  law  of  1813  which  provided  that  only  "citizens  of 

"  Larned,  15  New  Eng.  p.  520,  insists  that  under  the  Constitution,  white 
might  have  been  left  out  of  the  naturalization  act. 

"  Larned  (15  New  Eng.  520)  maintained  that  negroes  were  included  under 
the  term,  "free  inhabitants,"  as  proved  by  the  fact  that,  when  South  Carolina 
moved  to  insert  the  word  ''white"  in  the  Articles  of  Confederation,  two  States 
voted  for  it,  eight  against  it,  and  one  was  divided. 

^^  Larned  (15  New  Eng.  524)  maintained  that  this  law  proves,  by  its 
language,  that  there  were  free  citizens,  not  white. 


352  ROGER  BROOKE  TANEY 

the  United  States,  or  persons  of  color,  natives  of  the 
United  States,"  could  be  employed  on  ships ;^^  and  the 
law  of  1820,  which  restrained  the  nightly,  disorderly 
meetings  of  slaves,  free  negroes,  and  mulattoes  in  the 
District  of  Columbia.  Here,  again,  his  evidence  did 
not  establish  his  thesis. ^^ 

In  his  earlier  years,  Taney  had  represented  before  the 
Supreme  Court,  as  attorney,  the  defendant  in  the  case 
of  Le  Grand  v.  Darnall^^  and  his  client  had  been  de- 
scribed as  a  negro.  Blair  had  cited  the  case  in  his  brief, 
and  Taney  floundered  about,  in  trying  to  avoid  its 
conclusiveness.  In  doing  so,  he  made  the  remarkable 
statement,  that  as  a  person  may  be  a  citizen,  though 
exercising  no  share  of  the  political  power,  so  a  person 
may  vote  in  a  State  by  virtue  of  its  law,  and  be  a  non- 
naturalized  foreigner  or  a  negro.  The  fact  was  that, 
just  as  Marshall  decided  the  Dartmouth  College  Case 
without  defining  a  contract,  so  his  successor  was  deciding 
this  case  without  defining  the  word  ''citizen." 

Then  comes  another  assumption,  that  the  Federal 
Government  has  no  right  to  interfere  with  slavery,  but 
must  protect  the  rights  of  the  slaveowners.  "To  deal 
with  the  negro,  is  a  power  which  the  States  evidently 
intended  to  reserve  to  themselves." 

The  plea  in  abatement  was  before  the  Court;  but,  if 
it  had  not  been  there,  an  exception  admitted  that  Scott 
was  born  a  slave,  and,  if  his  removal  from  Missouri  did 
not  give  him  freedom,  he  was  a  slave  and  not  a  citizen, 
so  that  the  case  must  be  dismissed.     The  discussion  of 

^  Taney  insisted  that  these  two  classes  were  virtually  exclusive,  but  may 
it  not  be  argued  that  the  second  class  was  added  to  permit  the  employment  of 
slaves? 

"  He  also  stated  that  Wirt  and  Caleb  Gushing,  while  Attorneys  General, 
had  not  considered  negroes  as  citizens. 

58  2  Peters  670. 


ROGER  BROOKE  TANEY  353 

the  merits  of  the  case  was  not  obiter,  for  the  Supreme 
Court  had  the  right  to  revise  the  judgment  of  the  Circuit 
Court,  and  to  revise  it  for  any  error  apparent  on  the 
record.  Taney  distinguished  this  case  from  a  writ  of 
error  to  a  State  Court.  As  the  Circuit  Court  was  wrong 
in  overruHng  the  plea  in  abatement,  the  Supreme  Court 
must  correct  the  error,  and  not  leave  an  erroneous 
judgment  in  full  force  and  an  injured  party  without 
remedy.  It  is  difficult  to  see  how  this  statement  fits 
this  case,  for  Sanford  was  not  injured  by  the  decision 
below,  and,  if  Scott  was  a  slave,  he  had  received  sub- 
stantial justice.  Taney  now  proceeded  to  inquire 
whether  the  facts  relied  on  by  Scott  entitled  him  to 
freedom,  without  which  inquiry  the  Court  would 
sanction  an  error  which  is  patent  on  the  record,  and 
which  might  be  a  precedent,  and  lead  to  serious  mischief 
in  some  future  suit;  though  it  made  no  difference  as  to 
this  one.  A  long  discussion  followed  as  to  the  Western 
lands. ^^  The  words,  "territory  and  other  property," 
in  the  Constitution,  transfer  to  the  new  government 
property  then  held  in  common  by  the  States,  and 
have  no  reference  whatever  to  any  territory  acquired 
in  the  future.  The  power  to  control  is  limited  to  the 
territory  then  in  existence,  nor  are  the  words  used  such 
as  are  usually  used  in  giving  powers  of  legislation.^® 
Of  course,  citizens  who  emigrate  to  Territory  belonging 
to  the  people  of  the  United  States,  cannot  be  ruled  as 
mere  colonists.  ''The  principle  upon  which  our  Govern- 
ments rest,  and  upon  which  alone  they  continue  to  exist, 
is   the    Union    of   States,    sovereign    and    independent 

^3  Are  these  the  16  pages  which  Taney  added  to  his  opinion  after  delivering 
it? 

^°  Taney  tries  hard  to  distinguish  the  case  from  Am.  Ins.  Co.  v.  Canter 
1  Peters  511. 


354  ROGER  BROOKE  TANEY 

within  their  own  limits,  in  their  internal  and  domestic 
affairs."  Taney  found  that  principle  somehow  in- 
consistent with  a  grant  of  power  to  the  General  Govern- 
ment *'to  hold  colonies  and  dependent  territories." 
Congress  had  no  unlimited  power  to  pass  laws  for  the 
Louisiana  Purchase,  but  did  so,  as  "representative  and 
trustee  of  the  people."  The  rights  of  property  of 
citizens  are  preserved  by  the  Fifth  Amendment  to  the 
constitution,  and  Taney  saw  no  difference  between 
slaves  and  other  property,®^  so  that  the  Missouri  act, 
prohibiting  citizens  from  "holding  and  owning  property 
of  this  kind"  (i.e.,  slaves)  in  a  part  of  the  territory  of 
the  United  States  was  void.  Surely,  this  is  a  strained 
and  strange  construction  of  the  Constitution ! 

The  case  of  Strader  v.  Graham, ^^  jg  held  as  a  precedent 
to  show  that  the  residence  of  Scott  in  Illinois  did  not 
free  him. 

"Upon  a  careful  examination  of  all  the  cases  decided 
in  the  State  Courts  of  Missouri,"  Taney  reached  the 
amazing  conclusion,  which  was  amply  refuted  by  Curtis, 
that  "it  is  now  firmly  settled  by  the  decisions  of  the 
highest  Court  in  the  State,"  that  Scott  and  his  wife^^ 
are  not  free.  Anyhow,  the  case  should  have  been 
appealed  from  the  Missouri  Supreme  Court,  and  the 
Federal  Supreme  Court  ought  not  to  "sanction  such  an 
attempt  to  evade  the  law,  or  to  exercise  an  appellate 
power  in  this  circuitous  way." 

Finally,  Taney  returned  to  the  question  of  jurisdiction 
as  based  upon  citizenship,  and  held  that,  "upon  the 
whole,  therefore,  it  is  the  judgment  of  this  court  that  it 

61  Mr.  Justice  Brown  in  Downs  v.  BidweU,  182  U.  S.  Reps.  244-292,  said 
that  Taney  was  wrong. 
62 10  Howard  82. 
•*  The  only  reference  to  her. 


ROGER  BROOKE  TANEY  355 

appears,  by  the  record  before  us,  that  the  plaintiff  in 
error  is  not  a  citizen  of  Missouri,  in  the  sense  in  which 
that  word  is  used  in  the  Constitution,  and  that  the 
Circuit  Court  of  the  United  States,  for  that  reason,  had 
no  jurisdiction  in  the  case,  and  could  give  no  judgment 
on  it." 

The  Chief  Justice's  whole  argument  is  labored  and 
unsatisfactory,  and  in  the  phrase  of  Martin  Luther,  it 
is  a  ''right  strawy"  opinion. 

II.    THE   OPINIONS   OF   THE   OTHER  JUDGES 

In  most  cases,  it  has  been  sufficient  to  give  Taney's 
opinion,  but  here  we  must  summarize  all  the  opinions, 
to  give  the  full  account  of  the  cause.  Justice  Wayne's 
opinion  came  second,  and  occupied  only  four  pages. 
He  thought  that  ''the  case  involves  private  rights  of 
value  and  constitutional  principles  of  the  highest  im- 
portance, about  which  there  had  become  such  a  dif- 
ference of  opinion,  that  the  peace  and  harmony  of  the 
country  required  the  settlement  of  them  by  judicial 
decision,"  in  other  words,  the  Court  must  settle  a 
political  question.  This  sentence  shows  us  the  union- 
loving  Georgian  slaveholder,  who  largely  caused  the 
Court's  opinion  to  take  so  wide  a  scope.  He  must  have 
revised  his  opinion  after  the  case  was  decided,  for  he 
wrote:  "It  has  been  assumed  that  this  court  has  acted 
extra- judicially,  in  giving  an  opinion"  upon  the  Missouri 
Compromise,  since  the  Supreme  Court  must  decide 
whether  it  has  jurisdiction  to  "review  the  case  from 
the  State  Court,  and,  if  it  shall  be  found  that  it  has  not, 
the  case  is  at  an  end,  so  far  as  this  Court  is  concerned." 
In  the  case  which  comes  up  from  a  Circuit  Court,  how- 
ever, "we  begin  a  review  of  it,  not  by  inquiring  if  this 
Court  has  jurisdiction,  but  if  that  Court  has  it. "     Other- 


356  ROGER  BROOKE  TANEY 

wise,  the  Circuit  Court  jurisdiction  would  be  enlarged, 
and  the  Supreme  Court  could  only  review  the  lower 
Court's  judgment.  He  concurred  with  Taney  and 
Nelson. 

Nelson's  opinion  came  next,  and  occupied  nine  pages. 
It  will  be  remembered  that  it  was  originally  intended 
as  the  Court's  opinion,  and  that  Nelson  refused  to  alter 
it.^*  He  held  that,  "except  in  cases  where  the  power 
is  restrained  by  the  Constitution  of  the  United  States, 
the  law  of  the  State  is  supreme  over  the  subject  of  slavery 

within  its  jurisdiction Whether,  therefore, 

the  State  of  Missouri  will  recognize,  or  give  effect  to, 
the  laws  of  Illinois  within  her  territory,  on  the  subject 
of  slavery,  is  a  question  for  her  to  determine.  .  .  . 
Our  conclusion  is,  in  this  branch  of  the  case,  that  the 
question  involved  is  one,  depending  solely  upon  the  law 
of  Missouri,  and  that  the  Federal  Court,  sitting  in  the 
State  and  trying  the  case  before  us,  was  bound  to  follow 
it."  The  decisions  of  the  Missouri  Court  in  this  case,^^ 
''must  be  admitted  as  the  settled  law  of  the  State," 
and,  consequently,  as  "conclusive  of  the  case  in  this 
court."  By  these  decisions,  Scott  remains  a  slave. 
Previous  decisions  in  Missouri  truly  were  different,  but 
the  "first  decision  of  a  principle  of  law  by  a  State  Court " 
is  not  to  be  regarded  as  "permanent  and  irrevocable." 
"What  court,"  asks  Nelson,  unaware  that  Lincoln 
and  other  anti-slavery  men  shall  ask  a  similar  question 
concerning  the  Supreme  Court's  decision  in  this  case, 
"has  not  changed  its  opinions?  What  judge  has  not 
changed?"     Most  of  the  previous  cases,  moreover,  in 

^*  See  Tyler,  p.  385.  Rhodes,  II,  p.  253,  wrote,  if  Nelson's  opinion  had 
been  filed  alone,  the  "case  would  have  excited  little  interest  at  the  time,  and 
would  hardly  have  demanded  more  than  the  briefest  notice  from  the  historian." 

«  15  Mo.  Rep.  576,  595, 17  Mo.  Rep.  434. 


ROGER  BROOKE  TANEY  357 

the  border  slave  States,  agree  with  the  Missouri  Supreme 
Court's  decision  in  the  Dred  Scott  Case. 

Dr.  Emerson  went  to  his  post  as  an  officer  in  the  United 
States  army  "for  a  temporary  purpose,  to  remain  there 
for  an  uncertain  time,  and  not  for  the  purpose  of  fixing 
his  permanent  abode."  A  citizen  of  the  United  States, 
who  is  a  slave  holder,  has  a  ''right  of  transit  into,  or 
through  a  free  State,  on  business,  or  commercial  pursuits,'' 
or  in  the  exercise  of  "Federal  rights,  or  the  discharge 
of  a  Federal  duty," — a  right  depending  on  the  Con- 
stitution of  the  United  States  and  different  from  the 
right  of  a  settler. 

Justice  Grier,  the  only  member  of  the  Court  from  a 
Free  State,  to  concur  with  Taney's  opinion,  concurring 
also  with  Nelson,  took  two  short  paragraphs  to  state 
these  facts.  He  had  told  Buchanan  he  would  file  no 
full  opinion,  and  he  did  not  change  his  purpose. 

Justice  Daniel  occupied  twenty-four  pages,  emphasiz- 
ing the  importance  of  the  case,  and  giving  an  elaborate 
and  inaccurate  account  of  slavery  and  Roman  Law. 

Justice  Campbell's  opinion  is  twenty-five  pages  in 
length,  and  includes  a  discussion  of  historical  questions, 
in  the  course  of  which,  he  likens  the  position  of  the 
coalheavers  and  salters  in  England  at  the  time  of  the 
Revolution,  to  that  of  the  negro  slaves  in  North  America. 

Justice  Catron,  in  an  opinion  of  ten  pages,  took  the 
rather  remarkable  position  that,  since  Scott  won  the 
demurrer  in  the  Circuit  Court  and  Sanford  the  decision 
on  the  merits  of  the  case,  neither  could  appeal.  He 
discussed  the  Treaty,  by  which  Louisiana  had  been 
ceded,  and  said  the  Missouri  Compromise  Act  was  void, 
through  violating  it. 

Seven  judges  held  that  Scott  should  remain  a  slave. 
Two  dissented,  and  maintained  that  he  was  a  freedman. 


358  ROGER  BROOKE  TANEY 

McLean,  of  Ohio,  the  senior  of  these,  had  been  long 
upon  the  Bench,  and  was  supposed  to  have  held  ambi- 
tions to  receive  the  nomination  for  the  Presidency  by 
the  new  Republican  party  in  the  recent  campaign.  His 
opinion  covers  thirty-five  pages.  If  Nelson  gave  aid 
and  comfort  to  those  who  hoped  for  a  change  in  the 
rulings  of  the  Court,  McLean  surely  used  words  which 
were  almost  as  extreme  as  any  spoken  upon  the 
stump  by  an  anti-slavery  orator.  No  more  uncompro- 
mising dissent  was  ever  filed.  The  statement  of 
Taney,  that,  if  the  Court  looking  atj  the  record,  sees 
the  Circuit  Court  had  no  jurisdiction,  there  is  ground  for 
dismissal,  ''maybe  characterized  as  rather  a  sharp 
practice  and  one  which  seldom,  if  ever,  occurs. "  Mc- 
Lean is  very  severe  upon  Taney's  opinion  on  this  point; 
in  which  no  case  was  cited  as  authority,  nor,  "it  is 
believed,  can  be  cited."  He  blamed  Taney's  counte- 
nance of  the  practice  of  some  States  which  permitted 
foreigners  to  enjoy  political  privileges,  and  maintained 
that  any  freeman  is  a  citizen  within  the  act  of  Congress 
and  entitled  to  sue  in  the  Federal  Courts.  Taney 
contended  that  a  "colored  citizen  would  not  be  an 
agreeable  member  of  society,"  and  McLean  shrewdly 
replied  that  "this  is  more  a  matter  of  taste  than  of 
law." 

Slavery  is  a  local  State  institution,  existing  only  in  a 
country  where  it  has  been  established,  and  a  slave 
carried  beyond  that  territory  can  not  be  reclaimed. 
In  the  dark  ages,  white  men  were  slaves.  Slavery  is 
not  a  status  peculiar  to  negroes. 

Marshall, ^^  had  determined  that  Congress  possessed 
power  to  legislate  for  the  territories.  To  provide  for 
the  government  of  lands  annexed  to  the  country  is  an 

66  Atlantic  Ins.  Co.  v.  Canter,  1  Peters,  511. 


ROGER  BROOKE  TANEY  359 

"implied  power,  essential  to  the  acquisition  of  new 
territory." 

McLean  flamed  out  with  indignation,  and,  in  language 
remote  from  the  usual  calm  tones  of  judicial  decisions, 
he  exclaimed:  "To  discover,  at  this  late  date,  that  the 
lawmaking  powers  had  united  with  the  judiciary  to 
usurp  a  jurisdiction  which  did  not  belong  to  them,"  is 
"more  extraordinary  than  anything  which  has  occurred 
in  the  judicial  history  of  this,  or  any  other  country." 
An  "acquiescence  under  a  settled  construction  of  the 
constitution,  for  sixty  years,  although  it  may  be  errone- 
ous,"  is  better  than  to  overturn  it. 

McLean  referred  to  the  law  of  1804,  which  prohibited 
the  introduction  of  slaves  into  Orleans  Territory  from 
other  parts  of  the  Union  and  maintained  that,  if  Congress 
may  establish  a  Territorial  Government,  the  Court 
cannot  control  that  discretion  as  to  the  details  of  the 
government. 

Prigg  V.  Pennsylvania  proved  that  a  slave  brought 
into  a  free  State  becomes  free.  If  slavery  should  exist 
in  a  territory,  under  the  laws  of  which  of  the  Slave 
States  should  it  be  administered?  This  is  a  question 
which  the  pro-slavery  men  never  tried  to  answer — they 
could  not  answer  it  successfully. 

McLean  then  formally  defied  the  opinion  just  de- 
livered by  the  Chief  Justice: 

In  this  case,  a  majority  of  the  Court  have  said  that  a  slave  may 
be  taken  by  his  master  into  a  Territory  of  the  United  States,  the 
same  as  a  horse  or  any  other  kind  of  property.  It  is  true  this 
was  said  by  the  Court,  as  also  many  other  things  which  are  of 
no  authority.  Nothing  that  has  been  said  by  them  which  has 
not  a  direct  bearing  on  the  jurisdiction  of  the  Court,  against 
which  they  decided,  can  be  considered  as  authority.  I  shall 
certainly  not  regard  it  as  such. 


360  ROGER  BROOKE  TANEY 

How  could  one  expect  the  people  to  respect  the  deci- 
sion, when  a  member  of  the  Court  publicly  announced 
that  he  would  not  do  so? 

Curiously  enough,  McLean  made  no  reference  to  his 
own  opinion  in  the  case  of  Menard  v.  Aspasia,^^  in  which 
he  had  spoken  for  the  Court,  and  had  held  that  it  had 
no  jurisdiction,  on  an  appeal  from  the  Missouri  Supreme 
Court,  which  opinion  held  that  a  negro  who  had  been 
taken  to  Illinois  and  had  returned  to  Missouri,  had 
become  free  under  the  terms  of  the  Ordinance  of  1787. 
He  did  not  show  that  Taney's  language  as  to  the  deci- 
sions of  the  Missouri  Court  was  far  too  strong,  by  citing 
five  cases,  from  1824  to  1840,  in  which  the  Supreme 
Court  of  that  State  had  declared  negroes  free,  whose 
cases  had  been  similar  to  that  of  Scott,  and  that  even 
in  the  case  of  Scott,  the  decision  had  been  made  by  two 
justices  only,  while  the  third  dissented. ^^ 

In  his  conclusion,  McLean  quoted  from  Grier's 
opinion  for  the  Court  in  Pease  v.  Peck,  decided  in  the 
preceding  term  of  Court i^^  ''When  the  decisions  of  the 

67  5  Peters  504. 

68  (1)  Winey  v.  Whitefield,  1  Mo.  473,  Slave  from  N.  C.  to  111.  for  three  or 
four  years  then  to  Mo. — free;  (2)  La  Grange  v.  Chouteau,  2  Mo.  20.  The  Ordi- 
nance of  1787  upheld  and  residence  in  the  Northwest  Territory  entitled  the 
slave  to  freedom;  (3)  Julia  v.  McKinney,  3  Mo.  279,  Slave  hired  out  to  work  in 
Illinois  became  free;  (4)  Rachel  v.  Walker,  4  Mo.  350,  Slave  brought  by  Army 
officer  taken  to  Ft.  Snelling,  and  then  to  Prairie  du  Chien,  and  returned  to 
Missouri,  became  free — striking  parallel  to  Dred  Scott  case  (Blair  cited  this 
case  in  his  brief  on  Scott)  (5)  Wilson  v.  Melvin,  5  Mo.  592,  Negro  taken  from 
Tennessee  to  Illinois,  and  then  brought  to  Missouri,  is  free.  McLean  noted 
that  Gamble  C.  J.  was  the  dissentient  in  15  Missouri.  Smith  "Parties  and 
Slavery,  "p.  202,  uses  a  mild  word  in  speaking  of  McLean's  argument  as  "vigor- 
ous." Farrar  in  85  North  Am.  Rev.,  p.  407,  wrote  concerning  Scott's  residence 
in  Illinois:  "If  neither  the  Constitution  of  the  United  States,  nor  the  Constitu- 
tion of  the  States  can  protect  personal  freedom;  no  man,  whether  white  or 
black  (for  the  Constitution  makes  no  difference)  has  any  guaranty  of  protection 
by  the  strong  arm  of  the  law." 

69 18  Howard  589. 


ROGER  BROOKE  TANEY  361 

State  Court  are  not  consistent,  we  do  not  feel  bound  to 
follow  the  last,  if  it  is  contrary  to  our  own  convictions 
and  much  more  is  this  the  case,  when,  after  a  long  course 
of  consistent  decisions,  some  new  light  suddenly  springs 
up,  or  an  excited  public  opinion  has  elicited  new  doc- 
trines, subversive  of  former  safe  precedent. "  After  this 
quotation,  McLean  tartly  said  that  these  words  **do 
not  seem  to  be  as  fresh  in  the  recollection  of  some  of 
my  brethren  as  in  my  own." 

Justice  Curtis's  dissent,  the  last  of  the  opinions,  covers 
nearly  seventy  pages,  and  was  his  swan  song,  for  he 
resigned  before  the  next  term  of  Court.  It  has  been 
well  said^^  that  "by  complete  logical  argument"  this 
opinion  "refutes  every  one  of  Taney's  points"  and  that, 
"as  an  exposition  of  the  Federal  conception  of  the  nature 
of  the  government  and  the  powers  of  Congress,"  it 
"was  a  masterpiece. "^1 

Curtis  admitted,  in  the  outset,  that  the  Supreme 
Court  could  decide  upon  the  question  of  jurisdiction 
and  that  Sanford  did  not  lose  the  right  to  have  the 
matter  discussed,  by  assigning  error  on  the  record, 
because  he  won  the  case  below;  since  on  a  writ  of  error, 
the  whole  record  is  open  for  inspection  in  the  Supreme 
Court.  The  true  question,  to  Curtis's  mind,  was 
whether  the  Supreme  Court  would  affirm,  or  revise, 
the  judgment  of  the  Circuit  Court  on  the  merits,  when 
the  record  showed  upon  a  plea  to  the  jurisdiction,  that 
the  case  was  one  to  which  the  judicial  power  of  the 
United  States  did   not  extend.     Curtis  answered   the 

70  Smith  "Parties  and  Slavery,"  p.  202. 

^^  Cf.  Rhodes,  II,  263.  Ex-President  Fillmore  wrote  Curtis  that  his  argu- 
ment was  unanswerable.  Tyler,  p.  363,  attacked  Curtis's  doctrine  that 
slavery  was  created  by  municipal  law  and  maintained  that  it  was  created  by 
the  law  of  nations. 


362  ROGER  BROOKE  TANEY 

question  affirmatively,  and  said  that  the  Court  on  its 
own  motion  might  so  act. 

In  a  very  learned  fashion,  he  then  discussed  citizen- 
ship, but  did  not  define  it.  The  citizens  of  the  several 
States  were  citizens  of  the  United  States  under  the 
Articles  of  Confederation.  Judge  Gaston^^  j^l  1838, 
had  said  in  North  Carolina,  while  delivering  an  opinion 
for  the  highest  court  of  that  State,  that  all  human  beings 
were  either  slaves,  aliens,  or  citizens.  Massachusetts, 
New  Hampshire,  New  York,  and  New  Jersey  all  had 
negro  citizens,  entitled  to  vote  before  1787.  *'My  own 
opinion  is,"  added  Curtis,  ''that  a  calm  comparison  of 
these  assertions  of  universal,  abstract  truths,  and  of 
their  own  individual  opinions  and  acts  would  not  leave" 
the  men  of  those  States  *' under  any  reproach  of  incon- 
sistency  But  this  is  not  the  place  to  vin- 
dicate their  memory."  The  Constitution,  propria 
vigore,  does  not  deprive  of  citizenship  any  class  of  persons 
who  were  citizens  of  the  United  States  at  the  time  of  its 
adoption,  or  who  should  be  native  born  citizens  of  any 
State  after  its  adoption.  When  the  Constitution  uses 
the  phrase,  "native  born  citizen, "  it  implies  that  citizen- 
ship comes  from  birth.  In  five  States,  at  least,  colored 
men  could  vote,  at  the  time  of  the  adoption  of  the  United 
States  Constitution.^^  ''The  only  power  given  to  Con- 
gress to  legislate  concerning  citizenship,  is  confined  to 
the  removal  of  the  disabilities  of  foreign  birth.  There 
is  no  reference  in  the  Constitution  to  any  native  born 
persons  who  should  derive  their  citizenship  in  the 
United  States  from  the  action  of  the  Federal  Govern- 
ment."  The  enjoyment  of  the  elective  franchise  is  not 
essential    to    citizenship.     A    naturalized    male    citizen 

^2  State  V.  Manuel,  4  Dev.  and  Bat.  24.    Blair  cited  this  case. 
^2  Maryland  was  a  sixth. 


ROGER  BROOKE  TANEY  363 

may  not  become  President;  yet  he  is  a  citizen.  Citizen- 
ship is  not  dependent  upon  the  possession  of  any  parti- 
cular poHtical  or  civil  rights.  "It  rests  with  the  States 
themselve3  so  to  frame  their  Constitutions  and  laws, 
as  not  to  attach  a  particular  privilege,  or  immunity, 
to  mere  naked  citizenship."  Under  the  Confederation, 
the  term  "free  inhabitants"  was  used  as  equivalent  for 
"citizens." 

A  master  may  not  emancipate  a  slave  and  make  him 
a  citizen  thereby,  without  the  approval  of  the  State. 
The  treaties  with  the  Choctaws  and  Chickasaws  and 
that  with  Mexico  at  Guadalupe  Hidalgo,  had  made 
colored  persons  citizens. 

The  plea  to  the  jurisdiction  was  bad,  according  to 
Curtis's  view.  He  dissented  from  the  "assumption  of 
authority"  to  examine  the  constitutionality  of  the  Mis- 
souri Compromise  Act.  Such  an  exertion  of  judicial 
power  transcends  the  limits  of  the  authority  of  the 
Court.  ^4 

Curtis  considered  that  the  Circuit  Court  had  juris- 
diction, and,  consequently,  he  must  consider  whether 
its  decisions  should  be  reversed.  He  therefore  inquired : 
(1)  What  was  the  law  of  the  territory  into  which  Scott 
went?  and  (2)  Did  the  State  of  Missouri  recognize  that 
law,  on  the  return  of  Scott? 

As  to  the  first  question,  Curtis  wrote  that  the  will 
of  states  and  nations,  by  whose  municipal  law  slavery 
is  not  recognized,  has  been  manifested  either  (a)  ab- 
solutely to  dissolve  the  relation  of  master  and  slave,  (b) 
to  refuse  the  master  aid  to  exercise  control  over  the 
slave,  or  (c)  to  distinguish  between  the  case  of  a  master 
and  slave  temporarily  in  the  country  animo  non  manendi^ 

^^  He  cited  La  Grand  v.  Darnall,  2  Peters  664,  and  Livingston  v.  Story, 
11  Peters  351. 


364  ROGER  BROOKE  TANEY 

and  that  of  those  residing  there  permanently.  If  the 
Acts  of  Congress  are  valid,  the  law  of  the  Territory, 
within  whose  limits  Scott  and  his  family  resided,  fell 
under  the  first  category,  and  operated  directly  upon  the 
status  of  the  slave,  changing  it  to  freedom.  By  extend- 
ing the  Laws  of  Michigan,  to  the  Territory  of  Wisconsin, 
in  which  Fort  Snelling  was  located,  when  Scott  lived 
there,  Congress  not  only  borrowed  a  "general  system 
of  municipal  law,"  which  *'did  not  tolerate  slavery," 
but  it  was  ''positively  enacted  that  slavery"  should 
not  exist  there. 

Curtis  then  inquires  whether  the  law  of  Missouri 
recognized  the  "change  wrought  in  the  status  of  Scott 
by  the  operation  of  the  Wisconsin  laws"?  "In  the 
absence  of  positive  law  to  the  contrary,"  he  answered, 
"the  will  of  every  civilized  State  must  be  presumed  to 
allow  such  effect  to  foreign  laws,  as  is  in  accordance  with 

the  settled  rules  of  international  law It 

is  the  comity  of  the  State,  not  of  the  Court."  The 
judges'  "duty  is  simply  to  ascertain  and  give  effect  to 
this  will."  Missouri,  neither  by  statute,  nor  by  cus- 
tomary law,  (which  was  the  Common  Law  introduced 
in  1816),  "had  manifested  its  will  to  displace  any  rule 
of  international  law  applicable  to  a  change  in  the  status 
of  a  slave  by  foreign  law."  International  law  declares 
that  the  status  of  any  person  must  be  determined  by 
the  law  of  that  country,  "which  has  next  previously, 
rightfully,  operated  on  and  fixed  that  status." 

A  military  officer's  domicile  may  be  his  residence. 
He  is  not  incapable  of  acquiring  one,  and  the  presump- 
tion is  that  a  two  years'  sojourn  would  establish  a  resi- 
dence. Scott's  domicile  must  have  been  that  of  Dr. 
Emerson,  who  "went  into  the  territory  to  discharge 
his  duty  to  the  United  States."     Over  him,  "all  valid 


ROGER  BROOKE  TANEY  365 

laws  of  the  United  States,  constitutionally  enacted  by 
Congress  for  the  government  of  the  territory,  rightfully 
extended."  If  those  laws  were  constitutional,  Scott 
and  his  wife  werQ.  capable  of  contracting  a  lawful 
marriage,  and  were  ''absolutely  free  persons."  A 
marriage  valid  by  law  of  the  place  where  it  was  con- 
tracted is  valid  everywhere.  If  Scott  and  his  wife  were 
slaves,  tjiree  was  no  valid  marriage,  and  the  children  were 
illegitimate.  '*In  my  judgment,"  Curtis  announced, 
*' there  can  be  no  more  effectual  abandonment  of  the 
legal  rights  of  a  master  over  his  slave,  than  by  the  con- 
sent of  the  master  that  the  slave  should  enter  into 
a  contract  of  marriage  in  a  free  State."  A  law  in 
Missouri  which  would  annul  a  marriage  lawfully  con- 
tracted in  Wisconsin  would  impair  the  obligation  of  a 
contract,  and,  accordingly,  would  be  unconstitutional. 
The  decision  in  the  Missouri  Supreme  Court  as  to  Scott, 
did  not  settle  the  question  of  his  domicile,  but  broadly 
denied  the  operation  in  Missouri  of  the  law  of  any 
foreign  State,  or  country,  upon  the  status  of  a  slave 
going  into  Missouri  from  such  foreign  State,  the  laws 
of  which  country  had  acted  directly  upon  his  status, 
changing  it  from  slave  to  free.  This  decision  was  wrong, 
and  was  in  conflict  with  previous  decisions  of  that 
Court,  with  a  great  weight  of  judicial  authority  in  other 
slave-holding  States,  and  with  the  fundamental  princi- 
ples of  private  international  law.  The  Supreme  Court 
is  not  bound  to  follow  it,  but  has  the  rightful  authority, 
finally,  to  decide  the  effect  of  valid  laws  on  the  status 
of  Scott  in  Wisconsin,  and  as  to  whether  the  Missouri 
law,  as  interpreted  in  the  decision,  impaired  the  obliga- 
tion of  a  contract. 

The  fact  that  the  suit  in  the  Missouri  Court  was 
abandoned,  and  a  new  suit  was  begun  in  the  Federal 


366  ROGER  BROOKE  TANEY 

Courts,  had  so  little  weight  that  the  Court  had  not 
considered  a  similar  point  sufficiently  important  to 
notice  in  its  opinion  in  a  recent  case,'^  although  its 
attention  had  been  called  to  the  matter  in  the  argument. 
(Like  McLean,  he  cited  Pease  v.  Peck  to  show  that 
the  last  decision  of  the  State  Court  need  not  be  taken.) 
He  next  approached  the  validity  of  the  Missouri 
Compromise  Act.  It  depended  on  the  power  of  Con- 
gress over  the  territories.  The  cessions  of  territory  by 
the  States  to  the  Federal  Government  conceded  juris- 
diction, as  well  as  soil.  In  1787,  while  the  Constitutional 
Convention  was  sitting  at  Philadelphia,  the  Confedera- 
tion Congress,  meeting  in  New  York  City,  passed  the 
North  West  Territory  Ordinance  on  July  13,  and  it  was 
known  to  the  Convention  that  this  stretch  of  the  powers 
of  the  Confederation  was  made  by  necessity.  Clearly, 
the  Convention  would  not  have  neglected,  at  that 
moment,  to  have  given  the  Federal  Government  under 
the  Constitution  all  necessary  powers  of  legislation  over 
the  territories.  The  term  ''Territory  of  the  United 
States"  did  not  describe  an  "abstraction,"  but  an 
"actual  subject  matter,  and  not  alone"  the  lands 
"actually  belonging  to  the  United  States,  for  cessions 
from  North  Carolina  and  Georgia  were  contemplated." 
It  is  now  far  too  late  to  question  the  validity  of  annexa- 
tions of  new  territory  to  the  United  States,  and  the  only 
way  by  which  the  Federal  Government  possesses  the 
power  of  governing  such  annexed  lands,  is  under  the 
territory  clause.  To  take  a  clause,  "the  language  of 
which  is  broad  enough  to  extend  throughout  the  exist- 
ence of  the  government,  ....  and  narrow  it 
down  to  territory  belonging  to  the  United  States  when 
the  Constitution  was  framed,  while,  at  the  same  time, 

'*  Horner  v.  Benson,  16  Howard  354. 


ROGER  BROOKE  TANEY  367 

it  is  admitted  that  the  Constitution  contemplated  and 
authorized  the  acquisition.  ...  of  other  and  for- 
eign territory, "  was  as  ''inconsistent  with  the  nature  and 
purposes  of  the  instrument,  as  it  is  with  its  language." 
The  rules  and  regulations  made  by  Congress  can  be 
nothing  but  laws.  The  limits  of  these  rules  are  those 
of  the  "express  prohibitions  on  Congress."  The  regu- 
lations must  be  "needful, " — a  political  and  not  a  judicial 
question,  to  be  decided  by  Congress.  The  Federal 
Government  possesses  the  "power  to  govern  the  in- 
habitants of  the  Territory  by  such  laws  as  Congress 
deems  needful,  until  they  obtain  admission  as  States." 
Slavery  is  not  excluded  from  the  Congressional  power, 
which  extends  to  "all  needful  rules."  "The  purpose 
and  object  of  the  clause  being  to  enable  Congress  to 
provide  a  body  of  municipal  law  for  the  government  of 
the  settlers,  the  allowance,  or  the  prohibition  of  slavery 
comes  within  the  known  and  recognized  scope  of  that 
purpose  and  object,"  Curtis  contined,  saying  that  a 
"practical  construction,  nearly  contemporaneous  with 
the  adoption  of  the  Constitution,  and  continued  by 
repeated  instances  through  a  long  series  of  years,  may 
always  influence,  and,  in  doubtful  cases,  should  deter- 
mine the  judicial  mind  on  a  question  of  the  interpreta- 
tion of  the  Constitution."  Applying  this  principle, 
he  noted  that  Congress  in  1789  adopted  as  a  law  the 
Ordinance  for  the  government  of  the  Northwest  Terri- 
tory, fourteen  members  of  the  Constitutional  Conven- 
tion, including  James  Madison,  being  members  of  the 
Congress.  Congress  acted  favorably,  or  unfavorably, 
as  to  slavery  in  the  cases  of  the  North  Carolina  Cession, 
and  in  the  cases  of  the  Territories  of  Mississippi,  Indiana, 
Michigan,  Illinois,  Wisconsin,  Iowa,  and  Oregon.  In 
the    Missouri    Compromise   Act,    Congress   refused    to 


368  ROGER  BROOKE  TANEY 

interfere  with  slavery  in  Louisiana,  and  in  the  territories 
of  Orleans,  Missouri,  and  Florida.  Curtis  found  eight 
instances  from  1789  to  1848,  in  which  Congress  had 
excluded  and  six  more  (the  last  being  in  1822),  when  it 
recognized  and  continued  slavery.  Every  President, 
who  was  in  public  life  when  the  Constitution  was 
adopted,  had  signed  one  of  those  acts. 

The  view  that  the  Constitution  secures  every  slave- 
holder an  indefeasible  right  to  hold  slaves  in  the  terri- 
tory, was  drawn  from  property  rights,  and  from  the 
claim  that  exclusion  of  slaves  made  an  unjust  discrimina- 
tion. The  Court  had  no  concern  with  the  weight  of 
these  considerations,  which  could  not  engraft  anything 
upon  the  Constitution.  "To  allow  this  to  be  done 
.  .  .  .,  upon  reasons  purely  political,  renders  its 
interpretation  impossible,  because  judicial  tribunals  as 
such  cannot  decide  upon  political  considerations.'* 
Taney  had  often  expressed  this  sentiment,  but  here  had 
departed  from  it.  "When  a  strict  interpretation  of  the 
Constitution,  according  to  the  fixed  rules  which  govern 
the  interpretation  of  laws,  is  abandoned,"  Curtis  con- 
tinued, "and  theoretical  opinions  of  individuals  are 
allowed  to  control  its  meaning,  we  no  longer  have  a 
Constitution, — we  are  under  the  government  of  indivi- 
dual men,"  and,  "in  place  of  a  Republican  government, 
with  limited  and  defined  powers,  we  have  government 
which  is  merely  an  exponent  of  the  individual  political 
opinions  of  the  members  of  the  Court.  Where  the 
Constitution  has  said  all  needful  rules  and  regulations" 
as  to  the  territory  may  be  made  by  Congress,  Curtis 
"must  find  something  more  than  theoretical  reasoning 
to  induce  me  to  say  it  did  not  mean  all."^^ 

'^He   cited  Loughborough  v,  Blake,  5  Wheaton,  and  the  decision  in  9 
Wheaton  as  to  the  embargo,  to  support  his  position. 


ROGER  BROOKE  TANEY  369 

The  only  clause  In  the  Constitution  suggested  as  a 
reason  for  declaring  the  Missouri  Compromise  uncon- 
stitutional,   was   the   fifth  Amendment,    to   the   effect 
that  property  should  only  be  taken  by  due  process  of 
law.     Curtis  replied  to  this  citation;  that  (1)  ** slavery, 
being  contrary  to   natural  right,"  is  created  only   by 
municipal  law;^^  that  (2)  the  ''master  is  subject  to  the 
supreme  power  of  the  state  whose  will  controls  his  action 
toward  his  slave  and  this  control  must  be  defined  and 
regulated  by  the  municipal  law;"  and   (3)   that  "not 
only  must  the  status  of  slavery  be  created  and  measured 
by  municipal  law,  but  the  rights,  powers,  and  obligations 
which  grow  out  of  that  status,  must  be  defined,  protect- 
ed, and  enforced  by  such  law."     Curtis  then  puts  this 
question  to  the  advocates  of  slavery:  "Is  it  conceivable 
that  the  Constitution  has  conferred  the  right  on  every 
citizen  to  become  a  resident  of  the  territory  of  the 
United  States  with  his  slaves,  and  there  to  hold  them  as 
such,  but  has  neither  made,  nor  provided  any  municipal 
regulations    which    are    essential    to    the    existence    of 
slavery?     If  a  citizen  of  a  slaveholding  State  may  bring 
slaves  into  this  territory,  why  may  not  a  citizen  of  a 
non-slaveholding  State  do  so?  and  "what  law  of  slavery 
does  either  take  with  him  to  the  Territory?"     If  the 
reply  should  be  the  law  of  the  State  whence  the  slave 
came,    Curtis   would    explain:  "What   an    anomaly   is 
this!     Where  else  can  we  find,  under  the  law  of  any 
civilized   country,    the   power   to   introduce,    and   per- 
menently  continue,  diverse  systems  of  foreign  municipal 
law,  for  holding  persons  in  slavery!"     Curtis  shows  that 
"The  offspring  of  the  female  must  be  governed  by  the 
foreign  municipal  law  to  which  the  mother  was  subject, 
and  that,  when  any  slave  is  sold  or  passes  by  succession 

"  Cf.  Prigg  V.  Pa. 


370  ROGER  BROOKE  TANEY 

on  the  death  of  the  owner,  there  must  pass  with  him, 
by  a  species  of  subrogation,  and  as  a  kind  of  unknown 
jus  in  re,  the  foreign  municipal  laws  which  constituted, 
regulated,  and  preserved  the  status  of  a  slave  before  his 
exportation."  Such  a  condition  would  "prove  to  be 
as  unpracticable  in  fact,  as  it  is  .  .  .  .  monstrous 
in  theory." 

The  territory  ceded  by  France,  was  acquired  for  the 
equal  benefit  of  all  the  citizens,  of  the  United  States, 
"in  their  collective,  not  their  individual  capacities, 
.  .  .  .  according  to  the  best  judgment  and  discre- 
tion of  the  Congress Whatever  individual 

claims  may  be  founded  on  local  circumstances  or  sec- 
tional differences  of  condition,  can  not  ....  be 
recognized  in  this  court,  without  arrogating  to  the 
judicial  branch  of  the  Government,  powers  not  com- 
mitted to  it,  and  which"  it  is  not  "fitted  to  wield." 
If  the  phrase,  "due  process  of  law,"  was  violated  by 
Congress  in  1820,  it  was  also  violated  in  1787,  but  no 
one  discovered  it.  Maryland  and  Virginia  had  for- 
bidden the  importation  of  slaves,  without  being  sup- 
posed to  violate  the  Constitution.  If  Congress  had 
power  to  prohibit  slavery  at  all,  the  use  of  the  word 
"  forever"  in  the  act  would  not  invalidate  the  law,  for  the 
word  only  means  until  the  act  is  repealed.  The  treaty 
of  cession  of  Louisiana  cannot  "deprive  the  Congress 
of  any  part  of  the  legislative  power  conferred  by  the 
Constitution."  A  stipulation  in  a  treaty  as  to  legisla- 
tion had  repeatedly  been  held  in  the  Supreme  Court 
"to  address  itself  to  the  political  or  legislative  power,  by 
whose  action  thereon  this  Court  is  bound."  That 
treaty,  however,  contains  no  provision  limiting  Congres- 
sional power,  and  the  Missouri  Compromise  territory 
was  a  "wilderness  inhabited  by  savages"  in  1803.     A 


ROGER  BROOKE  TANEY  371 

clause  in  the  treaty,  protecting  the  individual  rights  of 
the  inhabitants  of  Louisiana,  did  not  preclude  Congress 
from  excluding  slavery  from  uninhabited  territory. 
Curtis  ended  by  saying:  "I  have  touched  no  question, 
which,  in  the  view  I  have  taken,  it  was  not  absolutely 
necessary  for  me  to  pass  upon,"  and  have  avoided  no 
question.  "To  have  done  either  more  or  less  would 
have  been  inconsistent  with  my  views  of  my  duty." 
No  one  has  given  a  more  serious  view  of  the  im- 
portance of  the  Dred  Scott  Case  than  B.  R.  Curtis,  Jr., 
in  his  life  of  his  father,  Mr.  Justice  Curtis.  ^^  He  main- 
tains that  there  was  no  proper  judicial  majority  "upon 
the  question  of  the  power  of  Congress  to  prohibit  slavery 
in  a  Territory,  and,  consequently,  the  claim  that  a 
'decision'  adverse  to  that  power  had  been  made  by  the 
Supreme  Court,  was  erroneous."  He  insists  that  the 
"course  of  a  majority  of  the  judges  ....  pre- 
cipitated the  action  of  causes  which  produced  our  Civil 
War."  "Southern  secession  would  never  have  been 
attempted  without  such  excitement  as  was  occasioned 
by  what  was  claimed  to  be  a  decision  of  the  Supreme 
Court"  concerning  slavery  in  the  territories.  Without 
this  decision,  Southern  feeling  concerning  the  carrying 
of  slaves  into  a  territory  "must  have  died  a  natural 

death It   was    the    factitious    importance 

given  to  the  supposed  constitutional  rights  of  such 
extension  by  the  venerable  persons  composing  the  major- 
ity of  the  Supreme  Court,  that  awakened  anew  a  jeal- 
ousy which  had  already  subsided  under  the  tran- 
quillizing influences"  of  the  Compromise  of  1850. 
There  was  a  general  feeling  throughout  the  North,  that 
the  annulling  of  the   Missouri   Compromise  Act   was 

^8  Life  of  Curtis,  I,  195  to  197.    See  Hampton  L.  Carson's  "Great  Dissent- 
ing Opinions"  in  Proceedings  of  Am.  Bar  Ass.  for  1894,  p.,  284. 


372  ROGER  BROOKE  TANEY 

''made  from  political  motives."  The  majority  judges 
failed  to  prevent  such  an  idea,  by  combining  their  views, 
or  of  disposing  otherwise  of  the  case.  The  filing  of 
separate  opinions  made  people  think  that  much  was 
said  obiter,  and  that  there  was  something  wrong.  Con- 
fidence in  the  Court  was  impaired  by  the  decision,  and 
the  majority  of  lawyers  in  the  North  rejected  it. 

By  a  vote  of  seven  to  two  (McLean  and  Curtis),  the 
Court  had  held  that  Scott  was  a  slave.  Three  of  the 
justices,  (Taney,  Wayne  and  Daniel)  had  said  that  no 
descendant  of  a  slave  could  be  a  citizen,  and  one  (Curtis) 
had  dissented  from  that  view.  Four,  and  possibly  five, 
justices  (Taney,  Wayne,  Daniel,  Curtis,  and  possibly 
Grier),  had  decided  that  the  plea  in  abatement  and  the 
whole  judgment  of  the  Court  below  were  before  the 
Court  on  the  record, ^^  two  had  denied  this  (Catron  and 
McLean),  and  two  (Nelson  and  Campbell)  expressed 
no  opinion  in  the  matter.  Nelson  rested  his  entire 
opinion  on  reaffirming  the  decision  of  the  Circuit  Court, 
and  five,  including  Taney,  concurred  with  him.  Four 
justices  out  of  nine  held  the  Missouri  Compromise  Act 
unconstitutional,  (Taney,  Wayne,  Grier  and  Catron).^® 
The  confused  condition  of  affairs  clearly  appears  in 
these  combinations. 

On  the  seventh  of  March  the  Court  delivered  its 
opinion  in  accordance  to  the  forecast,  and  on  the  next 
day.  Pike  wrote  the  Tribune :^^ 

The  slavery  question  has,  at  length,  found  its  way  into  the 
Supreme  Court  ....  and  that  body  has  fully  justified  all 
predictions  and  all  anticipations  that  the  system  would  find  there- 
in a  home  and  a  bulwark Alas!  that  the  character 

''^  Corwin,  p.  134,  placed  Campbell  here  instead  of  Grier. 

80  See  Farrar  in  85  North  Am.  Rev.  392,  and  McMaster,  VIII,  280.  The 
latter  speaks  of  the  majority  of  the  Court  as  "laying  aside  decorum  and  usage." 

81  "First  Blows,"  p.  367. 


ROGER  BROOKE  TANEY  373 

of  the  Supreme  Court  of  the  United  States  as  a  judicial  body  has 
gone !  It  has  abdicated  its  just  functions  and  descended  into  the 
pohtical  arena. 

Pike  praised  the  dissenting  justices  and  bitterly  insisted 
that  the  decision  "must  be  temporary."  The  court's 
appearance,  while  performing  this  "atrocious"  and  un- 
necessary action,  was  that  of  "nervous  exaltation." 
Taney,  "the  cunning  chief,  had  led  the  van,  and,  plank 
by  plank,  laid  down  a  platform  of  historical  falsehood  and 
gross  assumption." 

These  hot  and  passionate  words  were  uttered  by  a 
man,  in  whom  reflection  wrought  no  change  of  mind, 
and,  on  March  23,  he  wrote  the  Tribune,  in  answering 
the  question:  "What  are  we  doing  to  do  about  the 
decision?"  "We  propose  to  revolutionize  the  revolu- 
tion," and  "strike  directly  at  slavery. "^^  f^g  State 
of  Missouri  gave  official  approval  by  naming  a  County 
after  Taney.  Its  county  seat,  Taneyville,  is  the  only 
post  office  in  the  United  States  named  for  the  Chief 
Justice,  for  Taneytown,  in  Maryland,  took  its  name 
from  one  of  his  relatives.  ^^ 

Alexander  H.  Stephens,  speaking  in  the  House  of 
Representatives,  on  May  1,  1857,^^  accepted  the  deci- 
sion, as  proving  that  Minnesota  could  confer  upon 
persons  who  were  not  citizens  of  the  United  States,  the 
right  to  vote  for  members  of  the  Legislature  and  for 
Congressmen,  without  violating  the  Federal  Constitu- 
tion. Taney  had  admitted  that  the  States  could  confer 
upon  negroes  the  privilege  of  suffrage  within  their  own 
limits,   without   making   them   citizens  of  the   United 

82  "First  Blows,"  p.  370. 

83  2  Md.  Hist.  Mag.  74. 

84  Johnston  and  Browne's  Stephens  p.  335. 


374  ROGER  BROOKE  TANEY 

States.  There  could  scarcely  have  been  a  more  perfect 
reductio  ad  absurdum  of  Taney's  opinion. 

Two  years  subsequently,  Stephens^^  said  that  on  the 
principle  of  the  Dred  Scott  decision  depended,  *'in  all 
probability,  the  destiny  of  this  country,  and  who  is  vain 
enough  to  suppose  that  the  Dred  Scott  decision  would 
have  been  made,  but  for  the  agitation  and  discussion 
that  preceded  it,  and  the  sound,  clear  principles  which 
that  discussion  brought  to  light?" 

Buchanan  stood  firmly  behind  the  opinion^^  but  was 
forced  to  say  in  his  message  to  Congress  of  December 
3,  1860,  after  stating  that  emancipation  is  an  ''act  of 
sovereign  authority  and  not  of  subordinate  territorial 
legislation,"^^  that,  in  spite  of  the  Supreme  Court's 
action,  ''such  has  been  the  factious  temper  of  the  times, 
that  the  correctness  of  this  decision  has  been  extensively 
impugned  before  the  people,  and  the  question  has  given 
rise  to  angry  political  conflicts  throughout  the  country. " 

Reverdy  Johnson  always  insisted  that  the  decision 
was  correct,  and  yet  continued  to  believe  in  squatter 
sovereignty,  maintaining  that  the  decision  had  not 
forbidden  the  settlers  to  abolish  slavery.  ^^ 

Stephen  A.  Douglas  was  forced  to  defend  the  decision 
so  feebly  in  Illinois,  in  order  to  defeat  Lincoln  in  the  can- 
vass for  the  United  States  Senate  in  1858,  that  the 
South  refused  to  support  him  for  the  Presidency  in  1860. 

^  On  August  2, 1859,  Life  by  Cleveland,  p.  644,  quoted  in  Von  Hoist  Const. 
Hist,  of  U.S.,  VI,  p.  45. 

^  See  his  veto  messages  of  Feb.  24,  1859,  on  the  bill  donating  public  lands, 
and  of  June  22,  1860,  on  the  homestead  bill,  (Works,  X,  pp.  351  and  443), 
and  letter  of  1865,  on  the  nullification  of  the  Dred  Scott  decision  by  Congres- 
sional Act  of  June  19, 1862,  which  destroyed  slavery  in  the  territories,  Works, 
xn,  37. 

87  Works,  XH,  101. 

88  Tyler,  385,  Steiner's  "Life  of  Johnson,"  p.  38. 


ROGER  BROOKE  TANEY  375 

A  writer  in  the  National  Quarterly  Review  for 
December,  1864,^^  defended  the  Dred  Scott  decision, 
as  legal,  not  political.  It  was  impossible  to  suggest 
any  other  ground  for  slavery,  "that  is  intrinsically  more 
reasonable,  or  plausible,  than  that  of  Taney" — which 
is  surely  damning  it  with  faint  praise. 

Tyler,  in  his  life  of  Taney,  published  in  1872,  devoted 
thirty  pages  to  the  defence  of  Taney's  opinion.  With 
indiscriminate  praise,  Mikell,  as  late  as  1908,  wrote 
that^°  Taney's  opinion  was  "unassailable  in  the  logic 
with  which  it  declared  unconstitutional  the  aim  and 
purpose  of  the  Republican  party.  "^^ 

E.  W.  R.  Ewing  wrote  a  volume  which  appeared  in 
1909,  entitled  the  "Legal  and  Historical  Status  of  the 
Dred  Scott  Decision,"  which  warmly  defended  it. 
Other  than  these,  there  have  been  few  important  de- 
fences made. 

Taney  found  opportunity  to  write  three  arguments 
in  support  of  his  opinion.  The  first  of  these  was  written 
on  August  19,  1857,  from  the  Fauquier  White  Sulphur 
Springs,  where  he  was  spending  a  vacation,  and  was 
addressed  to  President  Eliphalet  Nott  of  Union  College, 
Schenectady,  New  York.  The  venerable  educator  had 
recently  written  a  work  entitled  "Slavery  and  the 
Remedy, "  with  a  Review  of  the  Decision  of  the  Supreme 
Court  in  the  Case  of  Dred  Scott,  and  had  sent  Taney 
a  copy. ^2  Taney  had  been  "much  out  of  health"  and 
had  delayed  to  acknowledge  the  work,  which  he  had 

89  Vol.  X,  p.  60. 

90  4  ''Gt.  Am.  Lawyers,"  p.  162. 

91  He  speaks  of  the  "gratuitous  misrepresentation"  and  the  "vituperation 
of  partisan  abuse"  from  which  Taney  suffered. 

92  Taney's  reply  was  presented  to  the  Mass.  Hist.  Soc.  by  Robert  C. 
Winthrop  in  March,  1873,  and  is  printed  in  the  Proceedings  of  the  Society, 
1871-73,  at  p.  445. 


376  ROGER  BROOKE  TANEY 

read  with  much  pleasure,  because  of  its  impartial  and 
friendly  spirit."  Nott's  review  of  the  Dred  Scott  case 
appeared  to  Taney  to  be  a  ''fair  one,"  stating  "truly 
its  portion."  Taney  hoped  that  Nott's  work  would 
correct  "misinterpretation."  He  did  not  mean  to 
publish  a  vindication  of  the  opinion.  "It  would  not 
become  a  member  of  the  Supreme  Court"  to  go  outside 
of  the  "appropriate  sphere  of  judicial  proceedings." 
"The  opinion  must  be  left  to  speak  for  itself."  Taney 
had  never  met  Nott,  and  asked  that  he  do  not  publish 
the  letter.  "I  am  not  a  slaveholder,"  Taney  added, 
"More  than  thirty  years  ago,  I  manumitted  every  slave 
I  ever  owned,  except  two,  who  were  too  old  when  they 
became  my  property.  These  two,  I  supported  in  com- 
fort, as  long  as  they  lived.  And  I  am  glad  to  say  that 
none  of  those  whom  I  manumitted  disappointed  my 
expectations,  but  have  shown,  by  their  conduct,  that 
they  were  worthy  of  freedom  and  knew  how  to  use  it." 
The  letter  is  important  from  its  disclosure  of  Taney's 
personal  attitude  towards  slavery.     He  wrote: 

Every  intelligent  person,  whose  life  has  been  passed  in  a  slave- 
holding  State,  and  who  has  carefully  observed  the  character  and 
capacity  of  the  African  race,  will  see  that  a  general  and  sudden 
emancipation  would  be  absolute  ruin  to  the  negroes,  as  well  as  to 
the  white  people.  In  Maryland,  and  Virginia,  every  facility  has 
been  given  to  emancipation,  where  the  freed  person  was  of  an  age 
and  condition  of  health  that  would  enable  him  to  provide  for  him- 
self by  his  own  labor Manumissions  were  frequent, 

and  numerous;  they  sprang  from  kindness  and  sympathy  of  the 
master  for  the  negroes,  from  scruples,  and  were  often  made  without 
sufficiently  considering  his  ability  and  fitness  for  freedom.  And 
in  the  greater  number  of  cases  that  have  come  under  my  obser- 
vation, freedom  has  been  a  serious  misfortune  to  the  manumitted 
slave,  and  he  has  most  commonly  brought  upon  himself  privations 
and  sufferings  which  he  would  not  have  been  called  upon  to  endure 


ROGER  BROOKE  TANEY  377 

in  a  state  of  slavery.    In  many  cases,  however,  it  has  undoubtedly 
promoted  his  happiness. 

It  is  difficult  for  any  one  who  has  not  lived  in  a  slaveholding 
State  to  comprehend  the  relations  which  practically  exist  between 
the  slaves  and  their  masters.  They  are,  in  general,  kind  on  both 
sides,  unless  the  slave  is  tampered  with  by  ill-disposed  persons, 
and  his  life  is  usually  cheerful  and  contented,  and  free  from  any 
distressing  wants,  or  anxieties.  He  is  well  taken  care  of  in  infancy, 
in  sickness,  and  in  old  age." 

Taney  admitted  that  there  were  exceptions,  as  "will 
always  be  the  case  where  power  combined  with  bad  pas- 
sions, or  a  mercenary  spirit,  is  on  one  side,  and  weakness 
on  the  other." 

"Unquestionably,"  he  continued,  "it  is  the  duty  of 
every  master  to  watch  over  the  religious  and  moral 
culture  of  his  slaves,  and  to  give  them  every  comfort 
and  privilege  that  is  not  inconsistent  with  the  continued 
existence  of  the  relations  between  them."  Most  of  the 
"hereditary  slaveholders"  in  Maryland  and  Virginia 
do  this. 

Taney  believed  that  it  had  "been  the  desire  of  every 
statesman  in  Maryland  to  secure  to  the  slave  every 
protection  from  maltreatment  by  the  master  that  can, 
with  safety,  be  given,  and,  without  impairing  that  degree 
of  authority  which  is  essential  to  the  "interest  and  well 
being  of  both."  This  is  a  "delicate  question,"  to  be 
"approached  with  the  utmost  caution,"  and  had  been 
made  more  dif^cult,  because  of  the  abolitionists'  attempt 
to  "produce  discontent  and  ill  feeling  in  the  subject 
race."  The  result  was  that  the  master  became  "more 
sensitive  and  jealous  of  any  new  restriction  upon  the 
power  he  had  heretofore  exercised,"  fearing  that  any 
step  in  that  direction  "might  injuriously  affect  the  minds 
of  the  slaves.  They  are,  for  the  most  part  weak, 
credulous,  and  easily  misled  by  stronger  minds." 


378  ROGER  BROOKE  TANEY 

**If  the  slaves  now  receive  more  privileges,"  they 
would,  probably,  be  told  that  they  were  wrung  from  their 
master  by  their  Northern  friends  and  be  taught  to  regard 
them  as  the  first  step  to  a  speedy  and  universal  emanci- 
pation, placing  them  on  a  perfect  equality  with  the  white 
race.  It  is  easy  to  foresee  what  would  be  the  sad  result 
of  such  an  impression  upon  the  minds  of  this  weak  and 
credulous  race."  No  statement  could  show  Taney's 
mind  upon  the  subject  more  clearly,  nor  more  thoroughly 
display  the  essential  evils  of  slaveholding,  as  expounded 
by  one  of  the  most  enlightened  and  moderate  of  its 
advocates. 

A  few  days  later,  on  August  29,  1857,  Taney  wrote 
from  the  same  place  to  ex- President  Pierce  concerning 
the  Dred  Scott  Case: 

You  see,  I  am  passing  through  another  conflict,  much  like  the 
one  which  followed  the  removal  of  the  Deposites  and  the  war  is 
waged  upon  me  with  the  same  spirit  and  by  many  of  the  same  men, 
who  distinguished  themselves  on  that  occasion  by  the  unscrupulous 

means  to  which  they  resorted At  my  time  of  life,^ 

when  my  end  must  be  near,  I  should  have  rejoiced  to  find  that  the 
irritating  strifes  of  this  world  were  over,  and  that  I  was  about  to 
depart  in  peace  with  all  men;  and  all  men  in  peace  with  me;  yet 
perhaps  it  is  best  as  it  is!  The  mind  is  less  apt  to  feel  the  torpor 
of  age,  when  it  is  thus  forced  into  action  by  public  duties,  and  I 
have  an  abiding  confidence  that  this  act  of  my  judicial  life  will 
stand  the  test  of  time  and  the  sober  judgment  of  the  country, 
as  well  as  the  political  act  of  which  I  have  spoke.  Your  successor 
has,  I  think,  a  difficult  time  before  him.  Symptoms  of  discord 
are  already  appearing.  Feeling,  as  I  do,  the  necessity  of  cordial 
union  among  the  friends  of  the  Constitution,  in  order  to  prevent  the 
government  from  falHng  to  pieces,  I  am  unwilling  to  find  fault 
with  the  present  administration,  even  when  I  cannot  approve. 

^  Letter  is  in  Library  of  Congress  and  is  printed  in  10  Am.  Hist.  Rev. 
358.    Taney  expected  to  return  to  Washington  about  September  15  or  20. 


ROGER  BROOKE  TANEY  379 

Yet  I  must  say  to  you  that  I  deeply  regret  the  adoption  of  the  prin- 
ciple of  rotation  in  ofi&ce.  Its  inevitable  consequences  will  be  to 
multiply  the  number  of  political  adventurers  and  trading  politi- 
cians, who  are  always  ready  to  sacrifice  the  public  interests  for  their 
own  individual  profit,  and  our  elections,  instead  of  being  contests 
for  principles,  will,  in  a  short  time  become  contests  for  the  emolu- 
ments of  office,  and  be  influenced  by  mere  mercenary  motives. 
The  removal  of  persons  who  are  opposed  to  the  administration, 
and  seeking  to  displace  it,  stands  on  a  very  different  principle. 
Indeed,  I  never  could  comprehend  how  a  man  of  right  principles 
and  right  feelings  could  consent  to  hold  an  office  under  persons 
whom  he  thought  it  his  duty  to  oppose  and  was  endeavoring 
to  turn  out.  But  the  principle  adopted  by  the  present  adminis- 
tration, is  a  very  different  one,  is  now  for  the  first  time  brought  into 
the  government,  and  will,  I  fear,  do  great  mischief. 

A  year  later,  in  September  1858,  while  the  subject  was 
"fresh"  in  Taney's  mind,  he  prepared  a  "statement, 
in  order  to  prove  the  truth  of  the  historical  fact  stated" 
in  his  "opinion,  in  relation  to  England  and  the  principle 
decided  by  the  Court,"  that  he  might  be  saved  the 
trouble  of  further  investigation,  should  the  subject  of 
slavery  come  before  the  Court  again  in  his  lifetime.  It 
is  safe  to  infer  that  the  criticism  of  this  part  of  the  opinion 
had  cut  Taney  most  deeply,  and  it  is  curious  that  it 
should  be  so.^^  Taney  was  fiercely  uncompromising 
in  his  attitude,  and  the  memorandum  would  still  further 
have  exasperated  the  anti-slavery  men,  had  it  seen  the 
light,  at  the  time  when  it  was  written.  He  first  stated 
"in  the  case  of  Dred  Scott,  the  decision  is,  in  express 
terms,  confined  to  the  case  of  a  person  of  the  African 
race  whose  ancestors  had  been  brought  to  this  country 
as  slaves."  He  then  proceeded  to  assert  that  "the 
Supreme  Court  did  not  decide  the  case  upon  the  ground 

^  Tyler  printed  this  memorandum  for  the  first  time  in  pp.  578  to  608, 


380  ROGER  BROOKE  TANEY 

that  the  slavery  of  the  ancestor  affixed  a  mark  of  in- 
feriority upon  the  issue  which  degraded  them  below  the 
rank  of  citizens;"  but  that  the  provisions  contained  in 
the  United  States  Constitution,  ''for  the  security  and 
preservation  of  individual  liberty,  and  conferring  special 
rights  and  privileges  in  certain  cases  upon  citizens  of 
different  States,  could  not  fairly  be  construed  to  em- 
brace a  description  or  class  of  persons,  whom  they 
regarded  as  inferior  and  subordinate  to  the  white  race, 
and,  in  the  order  of  nature,  made  subject  to  their  domin- 
ion and  will,  and  whom  they  were  accustomed  to  buy 
and  sell  like  any  other  property."  To  put  the  matter 
briefly,  Taney's  opinion  in  the  Dred  Scott  case  authorized 
"no  distinction  between  persons  of  the  negro  race, 
whether  their  ancestors  were  held  in  slavery  or  not. " 

He  next  made  a  long  disquisition  to  prove  that  he  had 
been  correct  in  his  statement  as  to  English  law.  Study- 
ing the  transportation  of  slaves  from  Africa,  he  noted  that 
Somers,  in  1689,  said  that  "negroes  are  all  merchan- 
dise," that  the  treaty  of  Utrecht  in  1713  granted  the 
assiento  of  slaves  to  Great  Britain,  and  that  this  treaty 
was  confirmed  and  renewed  at  various  periods  down  to 
1750.  English  statutes,  as  late  as  1787,  classed  the  slave 
trade  with  that  in  rum,  and  Great  Britain  had  prevented 
the  colonial  prohibition  of  the  Africa  slave  trade.  Of 
course,  all  this  discussion  was  absolutely  irrelevant  to 
Taney's  point,  for  no  one  denied  that  negro  slaves  were 
merchandise  and  the  statutes  said  nothing  concerning 
negro  freemen. 

Lord  Holt,  when  he  said,  in  Smith  v.  Brown,  that 
"as  soon  as  a  negro  comes  into  England  he  becomes 
free, "  only  meant  in  Taney's  view  that  "it  was  unlawful 
to  import  such  property  into  England,"  and  even  Lord 
Mansfield,  in  the  Somerset  case,  only  went  so  far  as  to 


ROGER  BROOKE  TANEY  381 

maintain  that  slavery  was  excluded,  as  a  "matter  of 
policy,"  because  the  "introduction  of  such  a  race  of 
slaves  would  be  injurious"  to  the  Englishmen's  interests. 

Then  Taney  turned  to  the  colonists,  and  maintained 
that  their  opinions  were  not  "more  favorable  to  the 
rights  of  the  African  race  than  those  of  the  mother 
country."  He  made  many  assumptions  and  we  find 
frequent  phrases  such  as  "must  have  been."  He 
proved  too  much,  and  maintained  successfully,  of  course, 
that  the  high-sounding  words  of  the  Declaration  of 
Independence  did  not  emancipate  slaves  and  that  the 
framers  of  this  document  "intended  to  preserve  their 
ancient  and  established  rights  and  privileges,  and  not 
to  upturn  their  own  social  institutions  and  domestic 
relations."  He  confuses  the  social  and  legal  sides  of 
the  relation  of  the  races,  and  states,  with  perfect  truth, 
as  if  it  tended  to  prove  that  a  negro  could  not  be  a  citi- 
zen, that  there  was  not  a  State  "in  which  the  inter- 
marriage of  a  white  person  with  a  negro  is  not  still 
deemed  to  be  unnatural. " 

He  next  refers  to  three  American  cases,  not  alluded  to 
in  his  opinion.  The  first  of  these  is  the  Pennsylvania  one 
of  Hobbs  V.  Fogg,  decided  in  1837,  in  which  the  Court 
held  that  a  free  colored  man  was  not  such  a  ''freeman" 
as  to  be  entitled  to  vote  and  said  that  "no  colored  race 
was  party  to  our  social  compact."  This  case  un- 
doubtedly favored  the  Chief  Justice's  contention. 

The  second  one  was  the  famous  North  Carolina  one 
of  the  State  v.  Manuel,  much  relied  on  in  Curtis's 
dissenting  opinion.  Taney  insisted  that  Judge  Gaston 
was  wrong  in  this  decision.  The  Revolution  was  not 
a  mere  change  of  dynasty,  nor  were  all  British  subjects 
transformed  thereby  into  American  citizens,  sharing  in 
the   "political  body  called  the  State."     "Those  who 


382  ROGER  BROOKE  TANEY 

displaced  the  sovereignty  of  the  English  monarch,  and 
associated  themselves  in  a  new  political  body/'  did  not 
admit  negroes  thereto,  in  Taney's  view,  but  he  gives  no 
evidence  for  this  unsupported  assertion  and  confused 
voting  with  citizenship.  White  women  did  not  vote, 
yet  assuredly  they  were  citizens. 

The  third  case  was  Williams  v.  Ash^^  in  which  a  negro, 
who  sued  in  the  Circuit  Court  of  the  United  States  for 
the  District  of  Columbia  for  his  freedom,  was  allowed 
it.  This  case  Taney  wrote  merely  concerned  the  jurisdic- 
tion of  a  court  under  the  exclusive  right  of  the  Federal 
Government  in  the  District,  and  had  no  reference  to 
the  Dred  Scott  Case. 

He  closed  his  memorandum  by  a  general  remark  that 
he  had  seen  no  criticism  of  the  opinion  "that  I  think 
it  worth  while  to  reply  to,  for  they  are  founded  upon 
misrepresentations  and  perversions  of  the  points  de- 
cided by  the  Court."  If  "exposed,  they  would  never- 
theless be  repeated.  "^^  On  the  whole,  though  the  mem- 
orandum shows  astuteness,  and  ability  as  an  advocate, 
it  is  as  well  that  Taney  did  not  publish  it,  for  it  adds  little 
to  his  reputation  as  a  judge. 

An  unpleasant  consequence  of  the  decision  was  the 
friction  which  occurred  between  Taney  and  Curtis. 
The  latter  went  to  Virginia,  on  the  adjournment  of 
Court,  after  filing  his  opinion  and  giving  a  copy  of  it  to 
a  Boston  newspaper  man  for  publication.  On  his  return 
to  Massachusetts,  he  was  told^^  that  Taney's  opinion 
had  been  revised  and  materially  altered.     Thereupon, 

95 1  Howard  1. 

9^  He  is  especially  severe  upon  a  "volume  published  at  Boston,  .... 
which,  from  the  beginning  to  the  end  is  a  disingenuous  perversion  and  misrepre- 
sentation of  what  passed  in  conference,  and  also  of  what  the  Court  has  decided." 
This  appears  to  be  a  covert  attack  upon  Curtis. 

"Curtis  Life,  I,  211  and  ff. 


ROGER  BROOKE  TANEY  383 

he  wrote  the  Clerk  of  the  Court,  asking  that  a  copy  of 
that  opinion  be  sent  him,  as  soon  as  it  was  printed,  and 
before  pubHcation.  On  April  6,  the  Clerk  answered, 
refusing  to  do  this,  and  stating  that  he  acted  under 
Taney's  orders.  Curtis  wrote  on  April  9,  stating  that 
he  felt  certain  that  Taney  would  not  have  kept  the 
opinion  from  a  fellow- justice  and  requesting  that  the 
Chief  Justice  be  told  that  Curtis  wished  the  copy.  On 
April  14,  the  Clerk  answered  that  he  had  consulted 
Taney,  who  reiterated  his  refusal.  Four  days  later, 
Curtis  addressed  Taney  a  letter,  asking  him  to  direct 
the  Clerk  to  comply  with  the  request.  Taney  did  not 
respond  until  April  28,  giving  his  attendance  on  the 
Circuit  Court  as  the  reason  for  his  delay.  He  acknowl- 
edged having  given  the  order  to  prevent  the  publication 
from  being  hurried  "before  the  public;  in  an  unusual 
manner,  by  irresponsible  reporters,  through  political 
and  partisan  newspapers,  for  political  and  partisan 
purposes."  A  relative  of  Curtis  had  asked  for  a  copy 
of  Taney's  opinion,  that  he  might  publish  the  two 
opinions  together,  and  that  fact  had  caused  Taney's 
original  refusal.  Curtis  himself  might  have  a  right  to 
a  copy,  only  in  case  he  wished  it  in  aid  of  the  discharge 
of  his  judicial  duties.  Wayne  and  Daniel  approved  of 
Taney's  orders.  The  opinion  had  "been  greatly  mis- 
understood and  grossly  misrepresented  in  publications 
in  the  newspapers."  The  Court  cannot  enter  into 
"discussions  with  gentlemen  who  write  for  the  news- 
papers," but  must  take  care  that  its  opinion  be  not 
brought  before  the  public  "garbled  and  mutilated  with 
false  glosses." 

To  this  rather  discourteous  letter,  Curtis  replied,  on 
May  13,  disclaiming  any  connection  with  the  applica- 
tion of  his  relative.     He  did  not  "think  it  necessary  to 


384  ROGER  BROOKE  TANEY 

explain  to  the  Clerk  of  the  Court  the  purpose  for  which 
he  "wanted  a  copy  of  one  of  its  records,"  though  he 
would  have  done  so  to  Taney,  if  such  a  request  had  been 
made  by  him.  He  felt  that  he  had  a  duty  to  lay  before 
the  country  his  grounds  for  dissent,  and  wished  to  have 
Taney's  opinion,  so  as  to  be  sure  just  what  it  contained. 
The  Court  could  make  no  order  in  vacation  time  to  with- 
hold a  paper,  without  notifying  all  the  judges,  which 
had  not  been  done.  Speedy  publication  of  the  opinions 
would  prevent  the  misunderstandings  which  Taney 
feared,  while  the  withholding  of  an  "authentic  copy" 
of  the  opinion  could  not  correct  misapprehension-.  In 
Massachusetts  and  several  other  States,  it  was  usual 
to  print  court  opinions  in  the  newspapers. 

Taney's  next  letter  was  dated  June  11.  He  had 
received  Curtis's  epistle  before  setting  out  to  Richmond 
to  hold  Court  there,  and  his  duties  and  "infirm  state 
of  health  prevented"  a  prompter  reply.  He  showed 
great  irritation  and  wished  to  stop  the  "unpleasant 
correspondence'*  which  Curtis  had  begun.  He  must, 
however,  correct  the  "erroneous  inferences"  which 
would  be  drawn  from  Curtis's  letter  as  to  Taney  and 
the  "judges  with  whom  I  conferred  in  opinion. "  Taney 
asks  why  Curtis  did  not  ask  him  directly  whether  he 
had  "materially  altered"  his  opinion,  after  it  was 
delivered,  and  receive  a  prompt  and  frank  answer.  The 
report,  which  led  Curtis  "to  ask  for  the  copy,"  had  *'no 
foundation  in  truth."  Taney  had  not  added  "one 
historical  fact  nor  one  principle  of  Constitutional  law, 
nor  Common  Law,  nor  Chancery  Law,  nor  Statute  Law ; " 
but  he  admitted  that,  after  hearing  the  dissenting 
opinions  read,  he  had  added  "proofs  and  authorities 
to  maintain  the  truth  of  the  historical  facts  and  principles 
of  law  asserted  by  the  Court  in  the  opinion  delivered 


ROGER  BROOKE  TANEY  385 

from  the  Bench."  In  previous  cases,  where  there  had 
been  "political  clamor,"  no  complaint  had  ever  been 
made  of  keeping  back  opinions.  If  Curtis  had  suggested 
to  the  Court  an  immediate  publication,  the  proposition 
could  have  been  carefully  considered  and  all  the  opinions 
given  to  the  public  at  once.  Instead  of  taking  this 
step,  Curtis  wrote  Taney,  on  the  day  after  the  case  was 
decided,  and  before  leaving  Washington,  but  said  nothing 
about  printing  the  opinions.  By  printing  his  own  in 
the  Boston  newspaper,  he  made  it  impossible  to  have 
all  the  opinions  issued  together,  and  caused  this  to  be 
the  first  case  in  which  an  ''assault"  upon  the  decision 
was  "commenced  by  the  publication  of  the  opinion  of 
a  dissenting  judge."  This  procedure  had  encouraged 
attacks  on  the  judges  who  gave  the  decision,  by 
"political  partisans,  whose  prejudices  and  passions  were 
already  enlisted  against  the  constitutional  principles 
affirmed  by  the  Court.  The  annual  elections  in  several 
States  were  approaching;  but  the  judges  who  concurred 
in  the  decision  did  not  "think  this  state  of  things  would 
justify  the  Supreme  Court  of  the  United  States  in  as- 
suming the  attitude  of  combatants  in  the  political  arena, 
by  publishing  its  opinion  hastily  in  the  public  journals." 
Taney's  order  to  the  Clerk  prevented  this.  Curtis 
published  his  opinion  without  consulting  the  majority 
of  the  Court,  and,  consequently,  Taney  told  him,  he 
had  "no  just  ground  upon  which"  he  "could  claim  to 
share  in  the  control  and  disposition  of  the  opinion  of  the 
Court,  when  the  avowed  object  of  your  dissenting 
opinion  was  to  impair  its  authority  and  to  discredit  it 
as  a  judicial  opinion.''  Taney  was  very  bitter,  and  closed 
the  letter  with  this  sentence.  "If  it  is  your  pleasure 
to  address  letters  to  me,  charging  me  with  breaches  of 
official  duty,  justice  to  myself,  as  well  as  to  those  mem- 


386  ROGER  BROOKE  TANEY 

bers  of  the  Court  with  whom  I  acted,  makes  it  necessary 
for  me  to  answer  and  show  these  charges  to  be 
groundless." 

The  galled  jade  truly  had  winced,  and  Curtis  dis- 
patched an  answer  from  Pittsfield  on  June  16,  having 
read  Taney's  letter  with  surprise:  "It  is  certain  that 
the  correspondence  has  become  unpleasant,  but  I  do 
not  find,  by  reviewing  it,  that  it  began  to  be  so  by  any 
act  of  mine. "  Curtis's  first  letter  was  written  "without 
expectation  that  anything  unpleasant  would  grow  out 
of  it."  He  did  not  charge  Taney  with  "breaches  of 
official  duty,"  though  he  considered  it  "highly  in- 
expedient to  restrain  others  from  publishing  the  opinion 
of  the  Court .  But  surely  there  is  a  wide  difference  between 
differences  of  opinion  on  a  point  like  this,  and  a  charge 
of  official  misconduct." 

Curtis  complained  of  the  "assumption  that  I  wanted 
a  copy  of  the  opinion  for  publication,  and  not  to  enable 
me  to  discharge  an  official  duty"  from  doing  which  the 
order  was  a  restraint.  Taney's  admissions  showed  a 
"wide  field  for  examination  and  argument"  and  gave 
good  ground  for  wishing  to  see  the  document.  Taney 
seemed  to  charge  Curtis  with  publishing  his  opinion 
for  "political  and  partisan  purposes."  Curtis  declined 
to  reply  to  this,  because  it  was  impossible  to  carry  on 
"such  discussion  without  bitterness."  It  sufficed  him 
to  write  that  "I  have  no  connection  whatever  with  any 
political  party,  and  have  no  political  or  partisan  purpose 
in  view,  and  no  purpose  whatever,  save  a  determination 
to  avoid  misconstruction  and  misapprehension."  The 
fact  that  the  publication  of  the  Court's  opinion  was 
restrained,  or  that  it  was  not  ready  for  publication 
when  delivered,  did  not  "authorize  any  one  to  impute 
to  me  intentional  unfairness." 


ROGER  BROOKE  TANEY  387 

Taney  received  this  letter  on  June  20,  and  answered 
it  on  the  same  day,  curtly,  saying  that  everything  in 
his  letters  was  ''defensive." 

This  closed  the  correspondence.  Curtis  filed  the 
papers  with  a  memorandum  that  the  forty-second  rule 
of  the  Court  was  that  opinions  should,  immediately 
upon  the  delivery,  be  delivered  to  the  Clerk  for  record ; 
but  Taney  retained  his  opinion  and  added  to  it,  what, 
in  Curtis's  estimation,  amounted  to  eighteen  manu- 
script pages,  without  notice  to  Curtis,  so  that  he  might 
reply  to  parts  of  the  dissenting  opinion.  Then  he 
deprived  Curtis  of  the  privilege  of  seeing  the  Court's 
opinion,  until  the  official  report  appeared.  When  the 
opinion  had  been  delivered  to  the  Clerk,  it  became  a  part 
of  the  public  records  of  the  country,  and  any  citizen 
had  the  right  to  copy  and  to  publish  it.  Curtis  believed 
that  the  opinion  was  not  ready  for  publication  when 
delivered,  and  so  was  not  filed,  and  that  the  order  was 
to  conceal  the  fact  that  it  was  not  on  file.  In  any  case, 
the  refusal  to  give  Curtis  a  copy  was  "an  act  of  usurpa- 
tion and  the  reason,  which  is  insinuated,  but  not  stated, 
that  it  was  conjectured  that  I  wanted  it  for  publication, 
certainly  does  not  render  the  act  less  offensive." 

George  Ticknor  Curtis,  who  had  himself  been  of 
counsel  in  the  case,  added  to  this  account^^  that  Justice 
Curtis  "had  as  high  an  appreciation  of  the  judicial 
character  and  public  service  of  Chief  Justice  Taney 
as  any  man  who  ever  knew  him."  The  Court  had 
yielded  to  the  "temptation  to  enter  into  an  expression 
on  constitutional  questions,  because  they  were  entering 
into  the  politics  of  the  time."  Taney ^^  was  a  "great 
magistrate  and  a  man  of  singular  purity  of  life  and 

98  Curtis  Life,  I,  230. 
93  Curtis  Life,  I,  239. 


388  ROGER  BROOKE  TANEY 

character."  A  ''mistake  in  a  judicial  career  so  long, 
so  exalted,  and  so  useful,  is  only  a  proof  of  the  imper- 
fection of  our  nature."  The  Court's  majority  made  a 
"fatal  mistake,"  in  supposing  that  the  decision  could  be 
accepted  by  the  people  of  the  North,  and  that  the  ''judi- 
cial mind  of  the  Free  States"  could  be  convinced  that  a 
Court  could  hold  that  it  had  no  jurisdiction,  and,  at  the 
same  time,  could  decide  constitutional  questions  arising 
from  the  merits  of  the  case.^°^  "Nothing  that  had 
previously  happened  had  afforded  so  much  excuse  for 
the  consolidation  of  a  sectional  Northern  party  in  array 
against  the  supposed  influence  of  the  slave  power  in 
national  affairs,"  nor  had  been  "such  a  godsend  to  the 
agitators."  " It  was  the  office  of  statesmen,  and  not  of 
judges,"  to  try  to  "promote  the  peace  and  harmony" 
of  the  country;  but,  for  once,  Taney  failed  to  separate 
political  from  judicial  considerations. 

The  Dred  Scott  Case  caused  Curtis  to  cease  to  feel 
that  "confidence  in  the  Supreme  Court  which  was 
essential  to  his  useful  cooperation  with  its  members.  "^^^ 
He  could  no  longer  "expect,  on  constitutional  questions, 
to  see  that  Court  act  with  that  judicial  propriety  and 
consistency  and  the  freedom  from  political  considerations 
which  could  alone  enable  it  to  retain  the  confidence  of 
the  country."  Accordingly,  he  resigned  his  seat  on  the 
Bench,  assigning  financial  affairs  as  his  reason.  When 
he  informed  Taney  of  the  fact,  the  latter  wrote  him,  on 
September  7,  1857,  a  cold,  dry,  letter. 

My  own  experience  has  long  since  shown  me  the  inadequacy  of 
the  salary  attached  to  the  office.  At  your  time  of  life,  you  may 
reasonably  expect  many  years  of  health,  and  strength  enough  for 
judicial  and  professional  labors.    And  I  have  no  doubt  you  have 

"0  Curtis  Life,  I,  207-208. 
"1  Curtis  Life,  1, 243, 247. 


ROGER  BROOKE  TANEY  389 

judged  wisely  in  returning  to  the  bar,  instead  of  remaining  on  the 
bench  and  diminishing  yearly  the  provision  you  had  made  for  your 
family  before  your  appointment.^^^ 

In  May,  1857,  Scott  and  his  family  were  sold  to  Blow, 
so  that  they  might  be  owned  and  manumitted  by  a 
Missourian,  and  their  freedom  soon  came  to  them. 
Scott  did  not  long  survive  his  emancipation,  but  died 
of  consumption  in  St.  Louis  on  September  17,  1858. ^•'^ 

III.    RECEPTION  OF  THE  DECISION  THROUGHOUT  THE 
COUNTRY 

Vice-President  Breckenridge  was  so  pleased  with 
Taney's  opinion  that  he  had  it  printed  at  his  own 
cost  and  scattered  throughout  Kentucky, ^^^  but,  on  the 
other  hand,  public  opinion  in  Massachusetts  was  much 
shocked,  and  regarded  the  decision  as  a  purely  political 

102  Justice  Campbell  presided  over  the  meeting  of  the  Bar  of  the  Supreme 
Court,  when  Curtis  died,  and  then  said  that  he  was  not  aware  that  there  was 
''hostility  or  unkindness  felt  or  expressed"  to  Curtis  by  the  justices  who  differed 
from  him.  G.  T.  Curtis,  when  Campbell  died,  said  that  it  was  not  surprising 
that  "judges  of  Southern  birth  and  training,  accustomed  to  this  form  of  prop- 
erty which  lay  at  the  basis  of  social  life  in  those  States,  should  have  over- 
looked those  considerations  which  made  the  claim  untenable  under  the  Con- 
stitution. Certainl}^,  they  were  bound  to  follow  their  convictions,  and  it  seems 
to  me  that  no  impartial  person  can  now  examine  their  opinions  as  pronounced 
from  the  Bench,  without  seeing  that  they  expressed  convictions  most  sin- 
cerely and  honestly  entertained.  Not  only  did  those  opinions  express  con- 
victions honestly  and  sincerely  held;  but  it  was  supposed  by  those  learned  and 
upright  men  that,  when  the  Supreme  Court  should  have  affirmed  the  Con- 
stitutional doctrine  which  they  believed  to  be  the  true  one,  all  further  agitation 
and  controversy  would  be  ended.  This  was  a  great  mistake,  and  miscalculation, 
which  the  sequal  proved."  (See  H.  G.  Connor  on  J.  Archibald  Campbell  in 
52  Am.  L.  Rev.  Mch.— Apr.  1918,  pp.  184, 187.) 

103  Hill,  in  Harper's  Monthly,  for  July  1907,  p.  252.    McMaster,  vol.  8,  p.  282 

104  Nicolay  and  Hay's  Lincoln,  vol.  2,  p.  73. 


390  ROGER  BROOKE  TANEY 

one.i^^  The  Springfield  Republican  printed  an  important 
editorial  on  the  subject  on  March  11,  1857 1^^^ 

We  can  not  overrate  the  significance  of  the  recent  opinion  of  the 

Supreme  Court The  history  of  judicial  decisions  in 

this  country  contains  nothing  so  important  as  this 

The  case  on  which  the  new  opinions  were  given  did  not  necessarily 
call  for  them.  It  could  have  been  disposed  of,  without  discussing, 
or  disturbing  the  great  principles  of  slavery  which  the  Court  has 

undertaken   to   settle The  majority   of   the   Court 

therefore  rushed  needlessly  to  their  conclusions  and  are  justly 
open  to  the  suspicion  of  being  induced  to  pronounce  them  by 
partisan  or  sectional  influences.  The  decision  was  of  the  utmost 
importance  to  the  slavery  interest,  and  to  the  Democratic  party 
as  based  upon  it.  They  were  in  desperate  circumstances.  The 
present  Territories  of  the  country  are  almost  certain  to  become 
free  States. 

The  decision  'Svill  widen  and  deepen  rather  than 
allay  agitation.  It  will  be  heeded  in  practice,  only 
by  those  who  approve  of  it  in  theory.  The  people 
are  the  court  of  last  resort  in  this  country.  They  will 
discuss  and  review  the  action  of  the  Supreme  Court  and, 
if  it  presents  itself  in  a  practical  question,  will  vote 
against  it."  Merriam,  who  wrote  the  editor's  life, 
commented  upon  the  decision,  as  one  "not  only  against 
justice  and  humanity,  but  also  against  the  traditions 
and  spirit  of  judicial  procedure." 

A  week  later,  the  Republican  showed  in  an  editorial  the 
legal  weakness  of  the  opinion. ^^^  ''There  was  but  one 
question   before   the   court,   and   that  was  a  question 

105  G.  T.  Curtis  to  J.  J.  Crittenden.     Coleman's  Crittenden,  II,  p.  137. 

io«  Quoted  in  S.  Bowles  Memoirs  I,  p.  222.  Ewing  "Legal  and  Hist.  Status 
of  the  Dred  Scott  Case,"  pp.  198  and  ff.  treats  newspaper  editorials  favoring 
and  opposing  the  Court's  decision. 

107  Merriara's  Bowles,  1, 223. 


ROGER  BROOKE  TANEY  391 

concerning  its  own  jurisdiction  in  the  case.  In  fact, 
the  Court  gave  no  judgment  and  simply  dismissed  the 

case  for  want  of  jurisdiction Everything 

beyond  this  uttered  by  the  Court  is  just  as  binding,  as 
if  it  was  uttered  by  a  Southern  debating  club  and  no 
more.  It  undoubtedly  shows  how  the  court  will  decide 
in  cases  involving  the  questions  which  it  argues  and  this 
gives  its  extra-judicial  opinions  their  only  power  and 
significance."  No  more  penetrating  attack  upon  the 
decision  has  ever  been  made  than  this  early  one.  The 
fact  was  that  Taney  had  forgotten  the  warning  in  his 
favorite  Maxims  of  Lord  Bacon, ^^^  that  "there  is  some- 
thing very  flattering  to  judicial  power  in  the  notion  that 
it  may  restrain  legislative  power  within  common  right 
and  reason." 

Stephen  A.  Douglas  vainly  tried  to  endorse  the  deci- 
sion, saying  that  it  was  a  ''barren  and  worthless  power 
to  bring  slaves  into  a  territory,  unless  sustained  by 
appropriate  police  regulations  made  by  the  settlers." 
Lincoln,  in  his  Springfield  speech,  on  June  26,  1857, 
made  an  important  utterance  upon  the  matter  i^"^^  *'We 
think  the  Dred  Scott  decision  is  erroneous.  We  know 
the  Court  that  made  it  has  often  overruled  its  own 
decisions,  and  we  shall  do  what  we  can  to  have  it  over- 
rule this.  We  offer  no  resistance  to  it."  His  opposi- 
tion was  based  upon  the  fact  that  the  decision  was  not 
unanimous,  had  partisan  bias,  was  based  on  ''assumed 
historical  facts"  which  were  "not  really  true,"  and  had 
not  been  reaffirmed  by  the  Court,  so  that  "it  is  not 
resistance,  it  is  not  factious,  it  is  not  even  disrespectful 
to  treat  it  as  not  having  yet  quite  established  a  settled 
doctrine  for  the  country." 

i°8  Taney's  Decisions,  619. 

"9  Works,  I,  228.     Nicolay  and  Hay,  II,  81. 


392  ROGER  BROOKE  TANEY 

This  is  a  much  milder  doctrine  than  Taney's  in  regard 
to  the  constitutionality  of  the  United  States  Bank,  and 
it  is  difficult  to  see  how  a  man  who  had  accepted  the 
latter  could  logically  object  to  Lincoln's  words. 

The  North  was  flaming  with  indignation.  ''Far  from 
exercising  a  healing  influence,  the  decision  widened  im- 
mensely the  already  serious  breach  between  the  North 
and  the  South. """^  The  New  York  legislature  appointed 
a  joint  committee  to  consider  what  measures  were 
necessary  to  protect  the  rights  of  her  citizens,  and  upon 
that  committee's  report,  passed  resolutions  to  the 
effect  that  the  State  would  not  allow  slavery  within  its 
borders,  and  that  the  Supreme  Court,  having  ''identified 
itself  with  a  sectional  and  aggressive  party"  had  "im- 
paired the  confidence  of  the  people"  in  the  tribunal. ^^^ 
The  legislatures  of  Maine  and  Ohio  officially  denounced 
the  decisionals  j^  April,  1857,  and  Vermont,  in  November^ 
followed  the  same  course.^^^ 

Other  anti-slavery  leaders  were  even  more  outspoken 
than  Lincoln.  William  H.  Seward  wrote  his  son,  on 
April  1,  1857,"4  that  he  had  turned  his  "thoughts  to 
a  political  programme  with  a  view,  if  it  shall  be  wise,, 
to  bring  it  out  at  some  time  during  the  season,  as  a 
relief  and  diversion  rendered  necessary  by  the  Dred 
Scott  Case. "  He  bided  his  time,  and  nearly  a  year  later,, 
in  a  speech  delivered  in  the  United  States  Senate  during 
the  debates  upon  affairs  in  Kansas,  on  March  3,  1858,1^^ 
he  made  a  bitter  attack  upon  Taney  and  the  Court, 
which  forgot  that  its  province  was  jus  dicere  and  not 

"0  Nicolay  and  Hay,  II,  81. 

"1  McMaster,  VIII,  p.  282. 

"2  Ewing  "Legal  and  Hist.  Status  of  the  Dred  Scott  Case,"  pp.  189,  195. 

i^Ew-ing,  pp.  192,  194. 

"4  Seward's  Seward,  II,  299. 

115  Vide  Congressional  Globe,  Seward's  Seward,  IV,  574  to  587,  Tyler,  p.  374, 


ROGER  BROOKE  TANEY  393 

jus  dare,  and  so  had  been  guilty  of  judicial  usurpation, 
the  ''most  odious  form  of  tyranny."  He  charged  the 
decision  to  "dismiss  the  action  for  want  of  jurisdiction 
over  the  suitor's  person,"  as  being  "as  repugnant  to 
the  Declaration  of  Independence  and  the  spirit  of  the 
Constitution,  as  to  the  instincts  of  humanity."  By 
that  determination,  the  tribunal  had  exhausted  all  its 
power;  but  it  presumed  further  to  "please  the  incoming 
President,"  by  "pronouncing  an  opinion"  that,  "by 
force  of  the  Constitution,  slavery  existed  .... 
in  all  the  territories  of  the  United  States,  para- 
mount ....  even  to  the  authority  of  Congress 
itself. "  He  accused  Buchanan  and  Taney  of  conspiracy 
in  the  matter,  making  such  grave  charges  that  his  biog- 
rapher, Bancroft,  blames  him^^^  for  failing  to  substan- 
tiate, or  withdraw  his  charges.  The  Senate  printed 
20,000  copies  of  this  speech,  and  distributed  them. 
Taney  was  so  enraged  by  it  that  he  said  that  had  Seward 
been  elected  President,  he  should  have  refused  to 
administer  to  him  the  oath  of  office.^^^ 

On  March  6,  three  days  after  Seward's  speech, 
Reverdy  Johnson  wrote  from  Washington^^^  a  categorical 
denial  of  Seward's  charges  and  a  flat  contradiction  of 
his  statements,  and,  for  the  most  part,  Johnson  was 
right. 

Charles  Sumner  was  even  more  intense  and  persistent 
than  Seward  in  his  attacks  upon  Taney  and  the  Dred 
Scott  Opinion.  In  the  United  States  Senate,  on  July  4, 
1862,  he  said  that  this  judgment  of  the  Supreme  Court 
"must  forever  stand  forth  among  the  inhumanities  of 
this  generation,"  and  that  the  Court  "erred  infinitely 

"6  Life  of  Seward,  T,  448. 
"'Tyler,  p.  391. 
"8  Tyler,  p.  385. 


394  ROGER  BROOKE  TANEY 

and  wretchedly.  "11^  Nearly  two  years  later,  on  May 
19,  1864,  in  the  Senate  Chamber,  he  returned  again  to 
the  attack,  saying  that  the  *'Dred  Scott  decision  was 
as  absurd  and  irrational  as  a  reversal  of  the  multi- 
plication table,  besides  shocking  the  moral  sense  of 
mankind."  He  called  it  ''that  atrocious  judgment, 
which  was  false  in  law  and  also  false  in  the  history  with 
which  it  sought  to  maintain  its  false  law,"  and  as  one 
which  "disgraced  the  country  and  ought  to  be  expelled 
from  its  jurisprudence,  "^^o  John  P.  Hale,  the  anti- 
slavery  leader  from  New  Hampshire,  made  even  a 
fiercer  attack,  if  possible,  ^^i  saying  the  ''Dred  Scott 
decision  was  an  outrage  upon  the  civilization  of  the  age 
and  a  libel  upon  the  law,  but  I  do  not  think  it  was  a 
disgrace  to  the  Supreme  Court  of  the  United  States." 

Sumner  said  that  the  decision,  which  was  nullified 
by  the  Act  of  Congress,  passed  in  1862,  freeing  slaves 
in  the  Territories,  was  buried  out  of  sight  when,  upon 
his  motion,  on  February  1,  1865,  a  colored  lawyer  was 
admitted  to  practice  before  the  Supreme  Court. ^^2 
After  Taney's  death,  on  February  9,  1866,  he  styled  the 
Dred  Scott  decision  as  **  perhaps  the  most  thoroughly 
perverse  and  reprehensible  in  judicial  history.  .  . 
.  .  It  was  an  insult  to  conscience,  to  reason,  and  to 
truth." 

The  first  of  the  more  careful  studies  of  the  decision, 
was  made  by  the  veteran  Jacksonian,  Thomas  Hart 
Benton,  long  United  States  Senator  from  Missouri,  who 
having  espoused  the  cause  of  freedom,  wrote  his  ''Histor- 
ical and  Legal  Examination  of  that  part  of  the  decision 

"3  Works,  vol.  VII,  p.  154. 

120  Works,  VIII,  p.  237. 

121  Sumner's  Works,  VIII,  240. 

122  Works,  XIII,  337.     Speech  of  Feb.  25, 1870. 


ROGER  BROOKE  TANEY  395 

of  the  Supreme  Court  of  the  United  States  in  the  Dred 
Scott  Case  which  declares  the  unconstitutionaHty  of  the 
Missouri  Compact  and  the  self  extension  of  the  Consti- 
tution to  the  Territories  carrying  Slavery  along  with  it, " 
completing  the  work  in  November,  1857,  and  learnedly 
condemning  the  opinion.  He  vigorously  attacked  the 
declaration  that  the  Missouri  Compromise  Act  was 
unconstitutional.  The  decision  was  ''contrary  to  the 
uniform  action  of  all  the  departments  of  the  govern- 
ment." The  Court  committed  a  great  error^^s  jj^ 
assuming  to  try  such  a  case;  for  its  power  was  judicial, 
not  political.  The  decision  was  "equivalent  to  an 
alteration  of  the  Constitution."  If  Congress  should 
''look  to  judicial  interpretation  for  its  powers,  it  would 
soon  cease  to  have  any  fixedness  to  go  by."  The 
motives  of  the  Court  were  laudable,  but  "the  under- 
taking was  beyond  its  competence."  "Far  from 
settling  the  question,  the  opinion  has  become  a  new 
question,  more  virulent  than  the  former,  has  become 
the  watchword  of  parties,  has  gone  into  party  creeds 
and  platforms,  bringing  the  Court  itself  into  the  political 
field,  and  condemning  all  future  appointments  of  Federal 
judges"  to  the  test  of  their  support  or  rejection  of  this 
decision. 

He  objected  to  the  Court's  entrance  into  the  merits 
of  the  case,  after  deciding  there  was  no  right  to  try  it 
through  want  of  jurisdiction,  and  said  that  the  Court 
"worked  sedulously  at  building  the  bridge,  long  and 
slender,  upon  which  the  majority  of  the  judges  crossed 
the  wide  and  deep  gulf  which  separated  the  personal 
rights  of  Dred  Scott  and  his  family  from  the  political 
rights  of  the  whole  body  of  the  American  people." 
"So  grave  an  inquiry,"  Benton  insisted,  "going  to  the 

^23  Examination  of  the  Dred  Scott  Case. 


396  ROGER  BROOKE  TANEY 

foundations  of  our  government,  ought  not  to  be  got 
hold  of  in  that  incidental,  subaltern,  and  contingent 
way. "  Even  if  there  had  been  jurisdiction,  so  *'  momen- 
tous a  question"  should  not  "have  been  hung  on  it, 
and  tried  as  appendant  to  a  decision  of  the  personal 
freedom"  of  Scott.  Especially  was  this  the  case,  when 
the  consequences  to  him  were  the  same,  whatever  might 
be  the  fate  of  the  Missouri  Compromise.  The  Court 
set  ''out  with  a  fundamental  mistake,  which  pervades 
its  entire  opinion  and  is  the  parent  of  its  portentous 
errors.  That  mistake  is  in  the  assumption  that  the 
Constitution  extends  to  Territories,  as  well  as  to  States, 
and  includes  these  infant  settlements  in  the  provisions 
made  for  sovereign  States."  Benton  held,  and  vouched 
Webster  as  a  supporter,  that  the  Constitution  could  not 
be  extended  over  anything  except  the  present  States, 
and  new  such  ones  as  are  admitted  into  the  Union. 

Calhoun,  in  1848,  first  advocated  the  extension  of  the 
Constitution  to  the  Territories,  and  carried  his  point  in 
the  passage  of  the  General  Appropriation  Bill.  The 
Court  now  decided  that  the  Constitution  went  of  itself 
and  enforced  itself  in  these  Territories,  so  far  as  slavery 
was  concerned.  Any  citizen  of  any  State  may  carry 
with  him  any  property,  considered  such  by  the  laws  of 
nature,  into  any  territory,  according  to  Benton's  view, 
but  no  man  may  carry  that  which  is  only  property  by 
State  law,  "because  he  cannot  carry  with  him  the  law 
which  makes  it  property."  In  Virginia,  slaves  are 
chattels;  in  Kentucky,  they  are  real  estate,  and  the 
"servile  code"  of  each  slave  State  differs  from  that  of 
every  other.  "There  being  no  power  in  Congress,  or 
the  Territorial  legislature,  to  legislate  upon  slavery," 
according  to  the  Court's  opinion,  Benton  holds  that 
the  "whole  subject  is  left  to  the  Constitution  and  the 


ROGER  BROOKE  TANEY  397 

State  law,  that  law  which  cannot  cross  the  State  line 
and  that  Constitution  which  gives  protection  to  slave 
property,  but  in  one  instance,  and  that  only  in  States, 
not  in  Territories — the  single  instance  of  recovering 
runaways."  The  Constitution  does  not  guarantee 
Republican  government  to  the  Territories,  and  they  have 
not  been  always  so  governed.  The  Federal  judiciary 
does  not  extend  to  the  Territories.  The  North  West 
Ordinance,  confirmed  by  a  Congressional  act  passed 
by  Southern  votes,  freed  slaves,  "as  proprietor  and 
sovereign,"  and  as  a  ''right  incidental  to  ownership  and 
jurisdiction. "  That  act  is  the  ''  authoritative  exemplifi- 
cation and  assertion  of  the  power  of  Congress  over  the 
territory,  going  the  whole  length  of  governing  a  Territory 
as  it  pleased,  and  legislating  upon  slavery  to  the  extent 
of  the  instant  and  uncompensated  emancipation  of  a 
great  number  of  slaves,"  as  Benton  wrote.^24  ''Five 
times  in  vain,  the  inhabitants  of  Indiana  and  Illinois 
petitioned  Congress  to  suspend  the  anti-slavery  clause 
in  the  North  West  Ordinance,  and  at  one  attempt  in 
1806  the  unfavorable  report  of  the  Congressional  Com- 
mittee was  written  by  John  Randolph  of  Roanoke." 
North  Carolina  and  Georgia  ceded  territory  to  the 
Nation,  with  the  condition  that  Congress  should  not 
emancipate  slaves  therein,  proving  that  otherwise  this 
might  have  been  done.  In  the  organization  of 
Mississippi  Territory  in  1798,  Robert  Goodloe  Harper 
of  South  Carolina  secured  the  prohibition  of  the  foreign 
slave  trade,  ten  years  before  such  prohibition  could 
be  made  in  the  States. 

When  Louisiana  was  annexed,  Randolph  spoke  of 
the  necessity  of  "taking  possession  of  this  country  in 
the  capacity  of  sovereigns."     "The  Missouri  Compro- 

«<  Page  45. 


398  ROGER  BROOKE  TANEY 

mise  was  a  Southern  measure.  In  the  debate  thereon 
strong  expressions  were  used  without  any  rejoinder. 
For  example,  John  W.  Taylor  of  New  York  "believed 
that  there  was  no  member  ....  who  doubted 
the  constitutional  power  of  Congress  to  impose  such  a 
restriction  on  the  Territories."  General  Samuel  Smith 
of  Maryland  "considered  the  power  of  Congress  over 
the  Territory  as  supreme,  unlimited,"  and  "that  Con- 
gress could  bestow  on  its  Territories  any  restrictions  that 
it  thought  proper."  In  Benton's  opinion,  the  Missouri 
Compromise  saved  the  Union  and  became  a  "national 
compact,"  which  "good  faith  and  the  harmony  and 
stability  of  the  Union  deserved  to  be  cherished  next 
after  the  Constitution."  None  of  its  contemporary 
opponents  had  stated  a  Constitutional  objection.  As 
late  as  1847,  Calhoun  had  voted  to  extend  the  Missouri 
Compromise  line  to  the  Pacific  Ocean.  Reverdy 
Johnson,  Buchanan,  and  Polk  all  praised  the  act,  as  had 
Clay  and  Jefferson  Davis.  P.  R.  Barbour  and  Henry 
Baldwin,  who  voted  for  the  act  in  Congress,  were  later 
justices  of  the  Supreme  Court.  Benton  had  voted 
for  the  confirmation  of  every  one  of  the  sitting  justices, 
except  Curtis,  and  was  friendly  to  the  Court;  but  he 
believed  that^^s  "the  decisions,  being  political,  are 
dependent  upon  moral  considerations  for  their  effect. 
They  cannot  be  enforced.  Influence,  not  authority, 
is  the  only  power  the  Court  can  wield." 

John  A.  Andrew  of  Massachusetts^^e  published  an 
"Analysis  of  the  Dred  Scott  Case"  in  which  he  main- 
tained that  the  "majority  of  the  Court  had  no  occasion 
to  follow  the  negroes  into  the  Territory"  of  Minnesota, 
because  Scott  had  either  been  made  free  by  the  residence 

126  Page  121. 

126  Vide  Nation  for  April  1892,  p.  311. 


ROGER  BROOKE  TANEY  399 

in  Illinois,  or  his  status  depended,  as  the  Court  held, 
not  upon  the  laws  of  the  State  of  Illinois,  where  he  had 
been,  but  upon  those  of  the  State  of  Missouri,  where  he 
lived  when  the  suit  was  brought. ^^^  In  either  event, 
the  Missouri  Compromise  was  not  relevant  to  the  case. 
Among  the  magazine  articles  attacking  the  decision, 
four  stand  out  as  of  especial  importance.  Nathan  Hale 
wrote  a  very  able  criticism,  which  appeared  in  the 
Christian  Examiner  for  July  1857.^2  8  Wittily  stating 
that  the  opinion  as  issued  shows  by  its  pagination  that 
it  neither  begins  nor  concludes  a  volume  of  reports,  he 
wrote  that  it  may  then  be  discussed  as  not  final. 
Against  Taney's  statement  of  the  lack  of  legal  rights  of 
negroes.  Hale  sets  up  the  counter  statement  that: 
"They  are  a  race  of  men  with  rights  equal  to  the  whites, 
to  which  race  some  individuals  are  subject."  The 
article  is  temperate,  though  decided  in  tone,  hoping 
that  the  decision  is  ''hrutum  fulmen  et  inane.''  The 
North  Carolina  case  of  State  v.  Manuel  decided  the 
question  of  negro  citizenship,  for  "all  that  any  one 
wishes  to  establish,  is  that  a  man  of  color  may  be  a 
citizen  of  a  State,"  and  then  he  may  sue  in  the  United 
States  Courts,  if  the  other  party  to  the  suit  be  a  citizen 
of  a  different  State.  In  Williams  v.  Ash,i29  Q^jy  14 
years  before,  Taney  had  recognized  that  black  men 
could  be  parties  to  suits  in  Federal  Courts.  Hale 
admitted  that  Scott  might  have  remained  in  slavery, 
because  his  master,  as  an  officer  of  the  army,  had  not 
acquired  a  residence  in  Illinois  or  Minnesota;  but 
he  insisted  that  Congress,  in  making  rules  for  a  territory, 

^27  Gray  and  Lowell  wrote  an  article  upon  the  case,  which  was  printed  in 
20  Law  Reporter  61. 
128  Vol.  63,  p.  65. 
129 1  Howard  12. 


400  ROGER  BROOKE  TANEY 

has  nothing  to  do  with  the  status  of  persons  not  in- 
habitants of  the  territory,  while  the  Slave  States,  as  a 
class,  do  not  hold  as  property  the  negro  race,  as  a  class. 
A  negro  is  a  slave,  only  because  the  laws  of  the  State 
in  which  he  resides  declare  him  to  be  such,  and,  in 
Prigg  V.  Pennsylvania,  the  Supreme  Court  said  that 
slavery  was  a  "mere  municipal  regulation."  There 
being  no  such  regulation  in  a  territory,  how  is  the  slave 
carried  to  Kansas  to  be  held, — under  the  laws  of 
Maryland,  or  of  Texas,  or  of  some  other  slave  State? 

In  the  August  number  of  the  New  Englander, 
published  at  New  Haven,  two  Yale  professors  made 
notable  contributions  to  the  subject,  by  the  articles 
they  wrote  for  that  magazine.  President  Theodore 
D.  Woolsey  dissected  Justice  Daniel's  Roman  Law,  and 
showed  how  faulty  it  waSj^^^^  while  Prof.  William  A. 
Larned,  of  the  Department  of  English,  contributed  a 
splendid  unsigned  article  upon  "Negro  Citizenship." 
He  maintained,  at  the  outset,  that  the  importance  of  the 
case  was  not  confined  to  negroes,  but  that  the  opinion 
had  "introduced  a  mode  of  interpreting  the  Constitu- 
tion," which,  "carried  to  its  legitimate  results,"  would 
render  that  document  an  "instrument  of  oppression  to 
the  whites,  as  well  as  to  the  blacks.  It  has  denied  the 
fundamental  principles  upon  which  American  democ- 
racy rests,  and  which  distinguish  it  from  every  democ- 
racy, ancient  or  modern,  which  has  ever  existed. 
Besides,  it  has  given  the  authority  of  the  highest  judicial 
tribunal  in  the  land  to  all  those  paltry  prejudices  against 
the  negroes  which  are  so  disgraceful  to  our  country- 
men." The  article  is  a  carefully  reasoned  discussion, 
not  an  appeal  to  the  feelings. 

"0  Vol.  15,  p.  345. 


ROGER  BROOKE  TANEY  401 

Professor  Larned^^^  examined  this  question  of  citizen- 
ship. He  began  with  the  statement  that,  at  the  adop- 
tion of  the  Federal  Constitution,  there  was  a  body  of 
citizens  of  the  United  States,  made  up  entirely  of  citizens 
of  the  States,  and  that  free  negroes  were  citizens  of  some 
of  these  States.  "The  present  body  of  citizens  of  the 
United  States  is  made  up,  in  part,  of  the  descendants 
of  these  original  citizens,  both  white  and  black."  Con- 
gress has  no  power  to  select  which  citizens  of  States  are 
to  become  citizens  of  the  United  States,  but  "each 
State  is  to  determine  what  free  persons,  born  within  its 
limits,  shall  be  citizens  of  such  State,  and,  thereby, 
citizens  of  the  United  States."  Otherwise,  there  would 
be  no  protection  "from  the  hazard  of  a  consolidated  and 
arbitrary  National  Government."  The  Constitution 
"superadded"  a  "general  citizenship"  to  the  "particular 
citizenship  of  the  individual  States."  Consequently, 
free  negroes,  who  "constituted  a  portion  of  the  citizens 
of  the  several  States,"  at  the  time  when  the  Constitu- 
tion was  adopted,"  constituted  also  a  portion  of  the 
people  of  the  United  States,  and  to  them,  as  well  as  to 
the  other  citizens  of  the  States,  appertained  the  im- 
munities and  privileges  of  general  citizenship  of  the 
United  States. "  Their  descendants  possess  these  rights 
and  Larned,  rather  fancifully,  argues  that  Scott  may 
be  one  of  them.  He  is  on  firmer  ground,  when  he  calls 
attention  to  the  fact  that  Taney  ignored  the  considera- 
tion of  the  question,  whether  a  franchise  has  been  taken 
away,  not  whether  one  has  been  granted,  de  novo.^^^ 

The  fact  that  the  Federal  Government  alone  can 
naturalize  foreigners  does  not  prove  that  it  can  prevent 

"1 15  New  Englander  489. 

132  Lamed,  p.  497,  charges  Taney  with  confusing  negroes  with  negro  slaves, 
and  with  using  "unfair  statements  and  appeals  to  prejudice." 


402  ROGER  BROOKE  TANEY 

a  State  from  making  any  native  born  persons  citizens. 
The  burden  of  proof  is  on  Taney  here,  and  he  has  not 
borne  it.  Whether  negroes  were  citizens  of  the  State 
in  1787  is  a  simple  *' matter  of  fact,  to  be  deduced  from 
the  charters  and  laws"  of  those  States.  To  the  in- 
ference Taney  drew  from  the  degradation  of  the  free 
negro,  Larned  opposed  the  fact  that  free  negroes  were 
citizens  of  a  majority  of  the  States  in  1787. 

Taney  had  referred  to  the  Declaration  of  In- 
dependence as  not  including  free  negroes  in  its  state- 
ment that  "all  men"  were  created  free  and  equal. 
Larned  boldly  meets  him  with  the  admission  that  the 
signers — "these  great  men,  were  inconsistent,"  as  are 
"all  great  philosophical  statesmen,  whose  views  are  in 
advance  of  the  age  in  which  they  live,  and  the  circum- 
stances which  surround  them."  Neither  Athenian  nor 
Roman  governments  were  founded  upon  the  great 
truth  "which  asserts  the  equality  of  men  as  to  natural 
rights.  Hence  slavery  was  not  inconsistent  with  the 
Athenian  democracy,  or  with  the  Roman  republic. 
But  it  is  the  character  and  glory  of  the  American  democ- 
racy that  it  rests  on  the  natural  rights  of  man.  Hence, 
slavery  is  inconsistent,  not  with  the  mere  fact  that  our 
State  governments  are  democratical,  but  with  the  funda- 
mental   principle    upon    which    these   democracies   are 

founded But,   in   order  to  be  consistent, 

shall  we  renounce  the  very  fundamental  principles  of  our 
government?"  The  "self  evidence"  of  the  truths 
uttered  in  the  Declaration  "is  founded  upon  the  com- 
mon nature  of  man."  Since  1776,  Larned  thought  the 
change  of  sentiment  as  to  the  blacks  had  not  been 
favorable  to  them,  as  Taney  had  stated;  but,  on  the 
contrary,  "among  the  most  eminent  Southern  States- 
men" there  had  been  "a  great  departure  and  apostasy 
from  the  opinions  of  the  Revolutionary  men." 


ROGER  BROOKE  TANEY  403 

The  only  negroes  referred  to  in  the  Federal  Constitu- 
tion are  slaves,  and  of  course  are  not  citizens.  Whether 
the  people  regarded  free  negroes  as  having  equal  rights 
to  themselves  or  not,  in  several  States  they  regarded 
them  as  entitled  to  the  one  right  of  citizenship.  Taney 
was  manifestly  judging  of  the  slave  states  of  the 
Revolutionary  period,  by  their  condition  in  1857,  in 
'  *  the  consolidated  empire  of  slavery. ' '  Taney  magnified 
the  inconveniences  of  the  Southern  States  from  negro 
citizens  of  the  North.  The  States  did  not  guard  them- 
selves in  the  Constitution  against  negro  citizens  of 
other  States  by  an  express  clause,  or  by  implication; 
consequently,  the  founders  did  not  have  the  same  fear 
as  Taney. 

Larned  sums  up  by  saying  that,  in  Taney's  opinion, 
"the  reasoning  is  as  weak  as  the  decision  is  revolting 
to  every  just  and  humane  feeling."  With  such  reason- 
ing, the  Constitution  ''can  be  made  to  mean  anything 
a  dominant  party  chooses  to  have  it."  The  decision 
gives  a  power  to  the  National  Government  over  the 
States  which  "stops  not  short  of  reducing  the  States 
into  mere  dependencies  of  the  National  Government; 
.  .  .  .  for  it  depends,  according  to  the  decision, 
upon  the  National  Government  alone  to  determine 
what  citizens  of  the  States  shall  be  selected  to  constitute 
the  sovereign  people  of  the  United  States.  "^^^ 

Taney  never  used  the  term  "National  Government," 
always  speaking  of  the  "General  Government,"  but 
there  was  much  truth  in  what  Larned  said,  of  the 
nationalizing  influence  of  Taney's  decisions,  which 
reached  their  climax,  as  we  shall  see,  in  the  decision  in 
the  case  of  Ableman  v.  Booth. 

'33  Page  524. 


404  ROGER  BROOKE  TANEY 

The  last  of  these  important  articles,  written  by 
Thomas  Farrar,  appeared  in  the  North  American 
Review  for  October,  1857.^3^  He  makes  a  keen  dis- 
section of  the  opinions,  calling  especial  attention  to  the 
lack  of  agreement  of  the  justices,  and  is  severe  upon  the 
"groundless  assumptions,  false  premises,  and  sophistical 
conclusions"  of  the  Court's  opinion.  The  "validity" 
of  the  whole  subsequent  proceedings  depends  upon  the 
answer  "given  to  the  question  as  to  the  jurisdiction  of 
the  Court."  The  whole  authority  of  the  case  hinges 
on  this  point, "  and  it  also  "involves  the  character  of  the 
Court,  the  personal  credit  of  the  judges,  and  the  honor 
of  the  nation."  Since  the  delivery  of  the  opinions, 
Farrar  asserted  that  Taney's  opinion  had  "sustained 
material  interpolations,  one  or  more  of  the  others  have 
been  reproduced  entire  since  that  time,  and  others  have 
undergone  alterations,  more  or  less  material.  "^^^ 

Having  decided  that  the  Court  had  no  jurisdiction, 
Taney  went  on  to  take  up  the  "monstrous"  position 
that  "any  descendant  of  imported  African  slaves, 
however  remote, "  cannot  be  a  citizen.  Farrar  raises  the 
question  as  to  citizenship  of  the  United  States,  separate 
from  that  of  the  States,  which  question  was  settled  by 
the  Fourteenth  Amendment.  After  deciding  that  Scott 
was  a  slave,  and  could  not  sue,  the  Court  went  on;  for 
"there  was  yet  much  ground  to  be  possessed, "  and  held 
the  Missouri  Compromise  invalid,  though  this  decision 
was  of  no  consequence  to  Scott. 

Farrar  summed  up  his  contentions  in  the  statement 
that,  "by  grasping  at  too  much,  the  Court  have  lost  the 

'34  Vol.  85,  pp.  392-415. 

13^  Farrar,  p.  400,  suggests  Grier  and  Campbell  as  having  altered  their 
opinions.  I  have  found  no  evidence  of  any  change  except  in  Taney's,  Wayne's 
and  Curtis's  opinions,  and  Wayne's  is  unimportant. 


ROGER  BROOKE  TANEY  405 

whole."  As  a  ''political  manual,  or  text  book,"  the 
decision  will  form  a  "rallying  point  and  ear-mark  for 
political  partisans. "  The  time  for  the  Missouri  Compro- 
mise is  past.  Stockholders  will  not  bring  slaves  to 
Free  States,  nor  Free  States  "desist  from  investing  free 
colored  inhabitants  with  any,  or  all,  the  rights  of  citizen- 
ship, whenever  they  choose"  to  do  so.  The  chief  result 
which  Farrar  foresaw  of  the  decision  was  the  "loss  of 
confidence  in  the  sound  judicial  integrity  and  strictly 
legal  character  of  the  tribunal" — a  result  which  "may 
well  be  accounted  the  greatest  political  calamity  which 
this  country,  under  our  forms  of  government,  could 
sustain." 

Later  comment  on  the  opinion  by  Northern  men  has 
been  no  more  favorable  than  the  earlier  criticism. 
Horace  Greeley ^^^  wrote  that  "the  reader  will  be  puzzled 
to  decide  whether  law,  humanity,  or  history  is  more 
flagrantly  defied"  by  Taney.  "The  people  are  treated 
as  inclining  to  usurp  the  power  of  excluding  human 
bondage  from  their  territorial  possessions,  so  the  Court 
decides  that  they  have  no  rights  in  the  premises,  no 
power  to  act  on  the  question." 

J.  M.  Ashley  of  Ohio,  in  the  House  of  Representatives, 
on  February  13,  1868,  attacked  the  decision  bitterly, 
and  made  the  unfounded  charge  that  the  rehearing  of 
the  case  had  been  given,  so  that  the  Court  might  learn 
whether  the  Executive,  with  the  army  and  navy,  would 
support  the  usurpation. ^^^ 

Henry  Wilson^^^  wrote,  in  1874,  that  the  decision's 
"interpretations  and  rulings  were  untrue  in  fact,  bar- 

136  American  Conflict,  I,  251,  264. 

137  Cong.  Globe  40th  Cong.,  3rd  Sess.,  App.  211.  See  also  Globe,  38th 
Cong.,  1st  Sess.,  App.  366. 

138  Rise  and  Fall  of  the  Slave  Power,  II,  523,  533. 


406  ROGER  BROOKE  TANEY 

barous  in  spirit,  absolutely  revolutionary  in  their  scope 
and  intent,  inhuman  toward  the  black,  and  despotic 
and  defiant  towards  the  white  population  of  the  land." 
Instead  of  leaving  slavery,  as  had  been  done  in  Prigg  v. 
Pennsylvania,  as  a  "matter  of  municipal  regulation," 
it  made  it  a  "creation  of  the  organic  law  of  the  land. 
.  .  .  .  The  Constitution  was  no  longer  the  sacred 
shrine  of  liberty,  but  the  frowning  Bastile  of  a  most 
intolerable  despotism.  "^^^  Yq^  Holst^^^  speaks  of 
Taney's  "shallow  and  arbitrary"  reasoning,  and  main- 
tains that  the  Constitutional  provisions^^^  on  the  fugitive 
slaves  and  the  foreign  slave  trade  show  that  that  instru- 
ment distinguished  slaves  from  other  forms  of  property. 
As  late  as  1892,  the  Nation,  in  reviewing  Carson's 
"Supreme  Court,"  stated  that  the  decision  "ought 
never  have  been  made,  should  never  be  forgiven." 
The  tribunal  was  not  acting  judicially,  and  the  "dis- 
cordant fiat"  displayed  such  diverse  reasoning  as  to 
be  disgraceful.  1^2  Carson  himself  had  said^"^^  that,  "  in 
a  moment  of  infatuation,"  Wayne  "became  convinced 
that  the  Court  could  settle  political  and  moral  questions 
for  all  time."  The  Court  yielded  to  his  view,  and, 
"by  a  judgment,  which  they  vainly  endeavored  to  induce 
the  country  to  believe  was  not  extra  judicial, "  sought  to 
"settle  the  most  agitated  question  of  the  day.     The 

"9  A.  M.  EUis,  in  15  Atlantic  Monthly,  156,  161,  for  Feb.  1865,  spoke  of 
the  Dred  Scott  Case  as  "the  lowest  depth."  His  anti-slavery  feelings  made 
him  depreciate  Taney,  and  to  say  "he  was  not  venal,  nor  corrupt,  nor  a  respec- 
ter of  persons,  but  had  a  disposition  to  serve  the  cause  of  evil 

There  is  little  in  all  his  judgments  to  raise  him  above  the  rank  of  respectable 
jurists.  His  own  State  was  tearing  ofif  the  poisoned  robe,  in  the  very  hour  in 
which  he  was  called  before  the  judge  of  mankind." 

"0  Const.  Hist.,  VI,  32. 

"1  Const.  Hist.,  VI,  42. 

"2  Nation,  Apr.  7, 1892,  p.  269. 

i«  Pages  366  to  375. 


ROGER  BROOKE  TANEY  407 

judgment  was  pronounced,  but  was  promptly  reversed 
by  the  dread  tribunal  of  war. "  Carson  considered  that, 
having  declared  Dred  Scott  not  a  citizen,  the  Court 
ought  to  have  dismissed  the  case.  No  portion  of 
Taney's  argument  is  "more  labored  or  constrained  than 
the  attempt  to  show  that,  after  disposing  of  the  plea 
in  abatement,  which,  when  sustained,  as  it  had  been 
upon  demurrer,  ousted  the  jurisdiction  of  the  Court, 
the  Court  had  still  a  right  to  enter  upon  a  discussion 
of  the  merits  of  the  case The  real  wrong- 
doing, of  which  the  Chief  Justice  was  guilty,  was  in 
attempting,  by  judicial  utterance,  to  enter  upon  the 
settlement  of  questions  purely  political,  which  were 
beyond  the  pale  of  judicial  authority,  and  which  no 
prudent  judge  would  have  undertaken  to  discuss.  It 
was  a  blunder  worse  than  a  crime,  from  the  consequences 
of  which  he  and  his  associates  can  never  escape.  The 
decision  "did  more  to  undermine  the  influence  of  this 
great  tribunal  and  prostrate  the  personal  influence  of 
its  members,  as  well  as  to  blacken  their  record,  than  can 
be  predicted  of  any  other  cause  to  be  found  in  the 
length  and  breadth  of  our  judicial  career. " 

T.  W.  Balch  recently  summed  up  the  matter,  briefly, 
thus:  the  "Supreme  Court  was  attempting  to  settle  by 
a  judicial  decision,  based  ostensibly  upon  legal  grounds, 
an    economic    difference    of   fundamental   importance, 

which  could  only  be  decided  by  a  trial  of  actual 
strength.  "144 

Biddle,  a  life  long  Democrat, ^^^  insists  upon  "the 
great  ingenuity  and  knowledge  of  the  political  history 
of  this  country"  shown  by  Taney;  but  is  forced  to  admit 
that  Curtis's  opinion  is  "profound  in  its  examination 

i«  A  World  Court,  p.  69. 

i«  Const.  Hist.,  pp.  179  to  181. 


408  ROGER  BROOKE  TANEY 

of  the  sources  of  the  law  upon  the  subject,  luminous  and 
learned  in  its  consideration  of  the  political  and  judicial 
history  of  the  country,  and  convincing  in  the  conclusions 
to  which  it  arrives."  Taney  was  carried  "beyond  the 
proper  limitations"  of  a  plea  in  abatement.  Curtis 
proved,  to  Biddle's  mind,  that  free  negroes,  whose  an- 
cestors had  been  slaves,  had  acquired  citizenship, 
and  that  by  history,  by  the  "inherent  force"  of  the 
words  of  the  Constitution, ^^^  and  by  "all  fair  and  reason- 
able rules  of  construction,"  the  Missouri  Compromise 
was  constitutional,  and  further,  that  the  Supreme  Court 
was  not  bound  to  follow  the  Missouri  Court,  which  both 
disregarded  the  law  and  reversed  the  earlier  decisions. 

James  G.  Blaine,  although  an  anti-slavery  man, 
wrote  one  of  the  fairest  estimates  of  the  Dred  Scott 
Case.i^^  The  decision  did  not  settle  the  slavery 
question,  but  rendered  "the  contest  more  intense  and 
more  bitter.  It  was  received  throughout  the  North 
with  scorn  and  indignation.  It  entered  at  once  into 
the  political  discussions  of  the  people,  and  remained 
there;  until,  with  all  other  issues  on  the  slavery  question, 

it  was  remanded  to  the  arbitrament  of  war 

The  decision  developed  a  more  determined  type  of 
antislavery  agitation."  Men  remembered  the  rejection 
of  the  Whig  nominations  of  Crittenden  and  Badger  for 
seats  in  the  Court.  "Perhaps,  in  the  whole  history  of 
judicial  decisions,  no  two  opinions  were  ever  so  widely 
read  by  the  mass  of  the  people  outside  of  the  legal 
profession, "  as  Taney's  and  Curtis's.  After  the  opinons 
had  been  delivered,  Fessenden  of  Maine  said,  in 
the  Senate,,  that  Buchanan  would  never  have  been 
elected,  had  the  decision  been  pronounced  before  the 

1^  Art.  IV,  Sec.  3,  paragraph  3. 

^^^  Twenty  years  in  Congress,  I,  131-134. 


ROGER  BROOKE  TANEY  409 

election,  and  that,  if  Fremont  had  been  elected,  "we 
should  never  have  heard  of  a  doctrine,  so  utterly  at 
variance  with  all  truth,  so  utterly  destitute  of  all 
legal  logic,  so  founded  on  error,  and  so  nonsupported  by 
anything  resembling  argument." 

Blaine  reminds  us  that  "personally  upright  and 
honest  as  the  judges  were  individually  known  to  be, 
there  was  a  convinction  in  the  minds  of  a  majority  of 
Northern  people  that,  on  all  issues  affecting  the  institu- 
tion of  slavery,  they  were  unable  to  deliver  a  just 
judgment." 

The  Chief  Justice  "was  not  only  a  man  of  great 
attainments,  but  was  singularly  pure  and  upright  in  his 
life  and  conversation.  Had  his  personal  life  and  charac- 
ter been  less  exalted,  or  his  legal  learning  less  eminent, 
there  would  have  been  less  surprise  and  indignation." 
The  lapse  of  years  showed  many  antislavery  men  that 
it  was  unjust  to  condemn  him  more  than  the  other 
justices  who  agreed  in  the  decision.  Time  had  not 
abated  the  "Northern  hostility"  to  the  decision,  when 
Blaine  wrote,  over  twenty-five  years  later,  but  had 

thrown  a  more  generous  light  upon  the  character  and  action  of  the 
eminent  Chief  Justice  who  pronounced  it.  More  allowance  is 
made  for  the  excitement,  and  for  what  he  believed  to  be  the  exi- 
gency of  the  hour,  for  the  sentiments  in  which  he  had  been  edu- 
cated, for  the  force  of  association  and  for  his  genuine  belief 
that  he  was  doing  a  valuable  work  towards  the  preservation  of 
the  Union.  His  views  were  held  by  millions  of  people  around 
him,  and  he  was  swept  along  by  a  current  which,  with  so  many, 
had  proved  irresistible.  Coming  to  the  Bench  from  Jackson's 
cabinet,  fresh  from  the  angry  controversies  of  that  partisan  era, 
he  had  proved  a  most  acceptable  and  impartial  judge,  earning 
renown  and  escaping  censure,  until  he  dealt  directly  with  the 
question  of  slavery.     Whatever  harm  he  may  have  done  in  that 


410  ROGER  BROOKE  TANEY 

decision  was  speedily  overruled  by  war,  and  the  country  can  now 
contemplate  a  venerable  jurist,  in  robes  that  were  never  soiled  by 
corruption,  leading  a  long  life  of  labor  and  sacrifice  and  achieving 
a  fame  in  his  profession  second  only  to  that  of  Marshall. 

Professor  Edward  S.  Corwin,  in  his  "Doctrine  of 
Judicial  Review,  "^^^  discusses  the  decision  with  per- 
spicacity and  acumen.  His  conclusion  is  that  the  deci- 
sion was  not  obiter,  nor  a  following  of  Calhoun's  ideas, 
nor  did  Curtis  refute  Taney's  argument  upon  the 
question  of  Scott's  title  to  a  prima  facie  citizenship. 
"None  of  these  results,  however,  goes  far  to  relieve  the 
decision  of  its  discreditable  character  as  a  judicial 
utterance."  It  was  not  an  "usurpation;"  but  was  "a 
gross  abuse  of  trust,"  and  it  put  the  "Court  in  the 
background,"  during  the  years  of  the  Civil  War  and  of 
Reconstruction. 

After  a  dispassionate,  careful  study  of  the  decision, 
Professor  Corwin. ^^^  concluded  that  Taney's  opinion 
was  not  "obiter, "  but  was  intended  to  be  "  the  deliberate 
utterance  of  the  Court,  intended  to  have  the  force  of 
law." 

He  stated  that  the  charge  against  Taney  amounted 
to  saying  that  the  action  of  the  Chief  Justice,  in  passing 
upon  the  constitutionality  of  the  Missouri  Compromise 
Act,  was  "illogical,"  because  it  was  "inconsistent  with 
the  earlier  part  of  his  opinion,"  which  removed  "from 
the  Court's  consideration  the  record  of  the  case  in  the 
lower  court,  and  with  it  any  basis  for  a  pronouncement 
upon  the  constitutional  question;"  and  that  the  action 
was  also  "in  disregard  of  precedent,"  which  "exacted 
that  the  Court  should  not  pass  upon  issues  other  than 

^^8  Pages  129  to  159,  a  reprint  of  an  article  in  17  Am.  Hist.  Rev. 
^^^  Doctrine  of  Judicial  Review,  p.  13v3. 


ROGER  BROOKE  TANEY  411 

those  the  decision  of  which  was  strictly  necessary  to 
the  determination  of  the  case  before  it;  and,  particularly, 
than  it  should  not,  unnecessarily,  pronounce  a  legislative 
enactment  unconstitutional." 

The  primary  question  was  "what  disposition  to  make 
of  the  plea  in  abatement,  which  the  Circuit  Court 
overruled,  thereby  taking  jurisdiction  of  the  case?" 
The  majority  of  the  Court  ruled  that  this  plea  was 
before  it,  and  that  the  decision  of  the  Circuit  Court 
thereon  was  subject  to  review.  Was  it  necessarily 
illogical,  after  pronouncing  against  the  jurisdiction  of 
the  Circuit  Court,  and  sustaining  the  plea  in  abatement, 
for  the  Court  to  consider  the  further  record,  by  which  the 
constitutional  question  was  raised?  Corwin's  view  is 
that,  waiving  the  question  of  the  plea  of  abatement,  in 
Taney's  theory  of  the  case,  the  question  of  jurisdiction 
remained  on  the  face  of  the  bill  of  exceptions  taken  by 
the  plaintiff,  since  Scott  admits  that  he  was  born  a 
slave  and  contends  that  he  has  become  free,  and  so  can 
sue  in  the  character  of  a  citizen.  Consequently,  Taney 
did  not  canvass  the  case  on  its  merits,  which  he  could 
have  done  with  propriety  only  had  he  chosen  to  ignore 
the  question  of  jurisdiction,  but  fortified  his  decision^^^ 
by  reviewing  the  issues  raised  in  exceptions,  and  can- 
vassed the  matter  of  jurisdiction  afresh.  The  validity 
of  Taney's  proceeding  thus  rests  on  the  answer  to  this 
question:  ''It  is  allowable  for  a  court  to  base  a  decision 
upon  more  than  one  ground,  and,  if  it  does  so,  does  the 
auxiliary  part  of  the  decision  become  obiter?"  Corwin 
refers  to  two  views  as  to  obiter  matter  in  opinions:  (1) 
that  no  part  of  an  opinion  is  decisive,  except  such  part 
as  was  absolutely  necessary  to  determine  the  rights  of 
the  parties;  or,   (2)   that  every  part  of  an  opinion  is 

150  Convin,  p.  136. 


412  ROGER  BROOKE  TANEY 

decisive  which  represents  the  deliberate  application  of 
the  judicial  mind  to  the  questions  legitimately  raised  in 
argument.  The  latter  view  he  holds  as  correct,  for  the 
former  one,  "by  keeping  open  a  choice  by  interested 
parties  between  the  diverse  grounds  of  decision,  would 
leave  the  law  unsettled,  precisely  in  proportion  as  the 
Courts  had  determined  to  settle  it." 

Corwin  further  holds  that  constitutional  questions 
should  be  decided  by  a  Court,  whenever  possible,  since 
cases  in  which  such  questions  occur  "warrant  an  ex- 
ceptionally broad  view  of  the  legal  value  of  judicial 
opinion. "  Taney's  critics  take  their  view  of  the  proper 
scope  of  judicial  decisions  from  Common  Law  pre- 
cedents, rather  than  from  American  Constitutional  Law, 
in  which  the  only  feasible  definition  of  obiter  is  "a  more 
or  less  casual  utterance  by  a  court  or  the  members 
thereof,  upon  some  point  not  deemed  by  the  Court 
itself  to  be  strictly  before  it.  "^^^  Corwin  maintains 
that  Taney  had  a  "clear  right  to  canvass  the  question 
of  Dred  Scott's  servitude,  in  support  of  his  decision  that 
Dred  Scott  was  not  a  citizen  of  the  United  States,  and 
that  he  had  the  same  right  to  canvass  the  question  of  the 
constitutionality  of  the  Missouri  Compromise,  in  support 
of  his  decision  that  Dred  Scott  was  a  slave."  To  all 
these  points,  Taney's  attention  was  directed  by  the 
arguments  of  the  counsel,  and  to  all  of  them  he  might 
cast  it  with  propriety.  "If  the  decision,  that  the 
Missouri  Compromise  is  unconstitutional,  be  unwar- 
rantable," it  is  not  because  it  was  obiter,  but  because 
it  was  incorrect. 

151  He  instances  the  fact  that  Marshall,  in  Brown  v.  Md.,  12  Wheaton  419, 
says  he  "supposes,"  and  that  Taney  in  the  License  Cases,  5  Howard  574,  ignores 
this  pronouncement,  while  treating  the  rest  of  the  opinion  as  law,  although  the 
second  part  of  it,  dealing  with  the  commerce  clause,  was  unnecessary,  since 
the  immediate  issue  had  already  been  disposed  of. 


ROGER  BROOKE  TANEY  413 

The  entire  Court  agreed  that  Congress,  in  governing 
the  territory,  was  controlled  by  the  Constitution;  but 
no  common  ground  was  found  as  to  why  the  Missouri 
Compromise  Act  conflicted  therewith. ^^^  Campbell  took 
the  extremest  position,  stating  that  the  only  power 
Congress  had  in  the  territories,  in  addition  to  those 
as  the  legislature  for  the  whole  country,  was  to  make 
rules  of  a  "conservatory  character"  for  the  "preserva- 
tion of  the  public  domain  and  its  preparation  for  sale, 
or  disposition."  Consequently,  it  is  the  duty  of  the 
Federal  Government  to  recognize  as  property  whatever 
any  State  may  "validly  determine  to  be  property." 
Benton  showed  that  this  theory,  that  the  Federal 
Government  must  not  only  admit,  but  also  protect 
slavery,  was  not  yet  ten  years  old,  but  Corwin  thinks 
he  was  wrong,  in  saying  that  the  theory  rested  ex- 
clusively on  Calhoun's  principles.  Daniel  went  almost 
as  far  as  Campbell  in  representing  the  power  of  Congress, 
in  governing  the  territories,  as  a  "simple  proprietary 
power  of  supervision,"  yet  he  rejected  Calhoun's  notion 
that  Congress  was  a  mere  trustee  of  the  States. ^^^ 

Catron  had  inflicted  the  death  penalty  on  the  Western 
Circuit  for  nearly  twenty  years,  and  could  not  admit 
that  Congress  had  no  power  over  the  Territories,  but 
said  the  Missouri  Compromise  was  void,  because  in- 
compatible with  the  treaty  of  cession  of  Louisiana,  and 
with  the  spirit  of  the  Constitution,  which  stipulated  for 
the  citizens  of  each  state  equal  privileges  with  those  of 
every  other  State.  Corwin  is  forced  to  exclaim  that: 
"a  more  extravagant  line  of  reasoning  it  would  be 
difficult  to  conceive!"     The  treaty  clearly  could  not 

152  Corwin,  p.  141. 

1^  CorMdn  remarks  that  Catron,  Grier,  Wayne,  and  Taney  would  not  read 
the  Constitution  "through  the  spectacles  of  the  prophet  of  nullification." 


414  ROGER  BROOKE  TANEY 

prejudice  Congress  in  the  exercise  of  its  Constitutional 
powers.  The  Constitutional  provision  referred  to  per- 
sonal, not  political  rights,  and,  furthermore,  there  was 
no  guarantee  elsewhere  to  any  one  of  rights  he  enjoyed 
in  his  home  State. 

"The  most  strongly  nationalistic,  or  more  properly 
federalistic,  of  all  the  opinions  upon  the  constitutional 
question,  was  that  of  the  Chief  Justice,"  Corwin  re- 
marks. Taney  followed  Marshall,  in  tracing  the  power 
of  Congress  to  govern  Territories  to  its  power  to  acquire 
them,  which  annexation  might  be  made,  only  in  order 
to  make  new  States  eventually. 

Corwin  also  upholds  Taney's  correctness  in  "asserting 
for  slave  property  a  position  within  the  Constitution, 
equal,  to  that  of  any  other  kind  of  property,"  and 
maintains  that  McLean's  argument  is  "erroneous  and 
beside  the  point,"  in  stating  that  slavery  w^as  contrary 
to  natural  law,  and  that  consequently,  the  Constitution 
recognized  property  in  slaves  in  States,  but  not  in 
Territories.  "All  property,"  Corwin  rejoins,  *'is  ac- 
quired in  accordance  with  the  laws  of  a  particular  State ; 
but,  when  acquired,  the  right  of  the  owner  thereto  is 
to  be  protected  by  the  Constitution. "  Taney  went  too 
far,  when  he  said  that  "the  only  power  conferred  is  the 
power,  coupled  with  the  duty,  of  guarding  and  protect- 
ing the  owner  in  his  rights."  Congress  did  not  owe  the 
"duty  always  to  exercise  a  protective  attitude  towards 
all  property  in  the  exercise  of  all  its  powers,  nor  did  slave 
property  occupy  a  position  of  superiority  to  other 
property." 

Taney  relied  on  the  due  process  of  law  clause,  but  this 
argument  seemed  irrelevant  to  Corwin,  for  property 
may  be  taken  in  case  of  an  offence  against  the  laws. 
It  is  implied  that  there  has  been  no  such  offence,  which 


ROGER  BROOKE  TANEY  415 

implication  assumes  the  unconstitutionality  of  the 
Missouri  Compromise — the  point  to  be  proved.  If  it 
was  constitutional,  it  was  a  law,  and  any  attempt  to 
take  a  slave  into  a  territory  in  contravention  thereof, 
was  an  offence  against  the  laws.  Furthermore,  due 
process  of  law  simply  involves  correct  judicial  pro- 
cedure and  here  no  question  of  procedure  was  involved. 
Not  the  method  of  enforcement  of  the  Missouri  Com- 
promise was  opposed,  but  any  enforcement  at  all  of  it; 
objection  was  made  not  to  the  mode  of  operation,  but 
to  the  substance. 

Corwin,  however,  finds  that  the  Constitutional  law 
of  the  period  causes  these  difficulties  to  disappear;  for 
it  was  ''generally  acknowledged  that  there  were  certain 
limits  of  the  legislative  power,"  which  it  could  not  exceed 
in  the  control  of  the  owner's  rights  to  property.  In 
some  States,  this  principle  had  been  established  on  the 
basis  of  the  phrases  "due  process  of  law,"  or  "law  of 
the  land, "  so  the  argument  was  not  irrelevant.  By  the 
same  line  of  reasoning,  Corwin  makes  the  petitio  prin- 
cipii  vanish.  For,  if  the  due  process  of  law  clause 
prohibited  le^slation  bearing  with  undue  severity  on 
existing  property,  the  term  law  means  law,  as  it  stood 
before  new  legislation  had  been  enacted,  and  the  phrase 
"offences  against  the  laws,"  means  those  against  the 
laws  so  defined.  In  1857,  every  court  acknowledged 
that  private  property  could  be  taken  for  public  use, 
but  there  agreement  ceased. ^^^    Taney  entered  on  the 

1"  Many  States  had  already  passed  laws  prohibiting  the  sale  of  liquor  which 
laws  applied  to  liquors  in  existence  at  the  moment  when  the  law  went  into 
effect,  and  these  confiscatory  acts  were  upheld  in  12  States.  Only  in  New 
York,  in  1856,  in  a  case  decided  between  the  two  arguments  of  the  Dred  Scott 
Case,  was  there  a  disallowance  of  such  a  Statute  as  contrary  to  due  process 
of  law.  Although  Taney  makes  no  reference  to  this  decision,  (Wynehamer  v. 
People,  13  N.  Y.  378),  Corwin,  rather  strangely,  has  little  doubt  but  that  he  took 


416  ROGER  BROOKE  TANEY 

Constitutional  question  to  settle  Congressional  power 
over  slavery  actually  existing  and  over  slaves  brought 
into  the  territory  henceforth.  The  only  effect  of  the 
Missouri  Compromise,  was  to  withdraw  from  owners 
entering  the  territory  the  right  to  bring  in  slaves. 
Curtis's  statements  were  correct  that  this  act  stood  on 
the  same  footing  as  to  constitutionality  as  the  North 
West  Ordinance,  or  the  laws  of  Maryland  and  Virginia 
against  the  importation  of  slaves.  So  that  Constitu- 
tion, by  providing  that  the  foreign  slave  trade  should 
not  be  prohibited  before  1808,  assumed  that  otherwise 
Congress  might  earlier  have  restricted  that  trade  under 
the  power  to  regulate  commerce. 

Corwin,  however,  considers  that  Taney  chose  his 
"ground  with  prescience."  The  Republicans  followed 
McLean,  rather  than  Curtis,  and  seizing  the  word, 
liberty,  in  the  Fifth  Amendment,  argued  that  Congress 
could  not  admit  slavery  into  a  territory. ^^^  In  later 
cases,  the  courts  have  applied  the  doctrine  of  due  proc- 
ess of  law,  especially  in  interpreting  the  fourteenth 
Amendment,  and  the  terms  liberty  and  property  have 
been  given  an  extended  signification,  while  the  doctrine 
that  "all  reasonable  laws"  give  due  process  of  law, 
has  obviated  the  "legislative  stagnation  which  the  earlier 
decisions  logically  imported."  Consequently,  the  Dred 
Scott  Case  has  a  "place  in  the  line  of  precedents,  from 
which  had  finally  emerged  one  of  the  most  fruitful 
doctrines  of  modern  Constitutional  law." 

As  to  the  question  of  citizenship,  Corwin  alleged  that 
the  "fundamental  issue"  between  Taney  and   Curtis, 

his  doctrine  from  the  New  York  Court!    This  case  Corwin  admits  would  not 
have  affected  the  constitutionaHty  of  the  Missouri  Compromise  as  to  Scott, 
who  was  brought  into  the  territory  after  1820,  and  the  New  York  doctrine  was 
in  "flat  conflict"  with  that  of  a  dozen  States. 
165  Corwin,  p.  153. 


ROGER  BROOKE  TANEY  417 

though  "not  very  specifically  joined,  is  not  whether 
there  may  not  have  been  negro  citizens  of  States  in 
1787,  who,  upon  the  adoption  of  the  Constitution, 
became  citizens  of  the  United  States;  but  from  what 
source  citizenship,  within  the  recognition  of  the  Con- 
stitution, was  supposed  to  flow  thenceforth."  Curtis 
held  that  citizenship  came  through  the  States;  but 
Taney's  view  was  that  a  "citizen  of  the  United  States, 
to  use  his  frequent  phrase,  unless  descended  from  those 
who  became  citizens  at  the  time  of  the  adoption  of  the 
Constitution,  owed  his  character  as  such  to  some 
intervention  of  national  authority — in  short,  he  was  a 
product  of  the  National  government."  Corwin  con- 
sidered Curtis's  view  as  "doubtless  that  of  the  framers" 
of  the  Constitution,  while  Taney's  pretence  is,  "at 
this  point,  particularly  hollow;"  but  is  a  very  logical 
and  indeed  inevitable  deduction  from  his  whole  body 
of  doctrine  with  reference  to  the  dual  nature  of  the 
federal  system:  the  States,  independent  and  sovereign 
within  their  sphere;  and  the  National  Government 
within  its.  This  theory  Taney  had  voiced  from  the 
beginning  of  his  judicial  career,  so  that  at  this  point 
he  was,  at  least,  acting  consistently  with  his  part.^^^ 

Professor  T.  C.  Smith  had  occasion,  a  few  years 
ago,i"  to  study  this  decision.  Prior  to  it,  he  found  the 
Court  was  cautious  to  avoid  partisanship  in  slavery 
cases,  and  that  "purely  legal  reasoning"  was  applied 
to  the  interpretation  of  the  Constitution.  In  this  case, 
however,  Taney's  opinion  was  "not  so  much  a  judicial 
statement  as  an  elaborate  essay  upon  the  history  of 
slavery  under  the  Constitution,  and  a  justification  of  the 
most   radical   Southern   positions   regarding   the   insti- 

^^  Corwin,  p.  157. 

'57  ''Parties  and  Slavery,"  in  Hart's  "American  Nation"  Series,  pp.  195-208. 


418  ROGER  BROOKE  TANEY 

tution Had  Taney's  opinion,  with  all  its 

glaring  inconsistencies,  stood  as  that  of  a  united  court," 
it  would  have  had  great  influence;  "but  it  was  almost 
as  much  damaged  as  supported  by  the  variety  in  the 
concurring  opinions."  Professor  Smith  continued: 
**The  political  character  of  the  whole  performance,  was 
stamped  upon  it  in  the  phraseology  of  the  opinion,  as 
well  as  in  the  logical  incoherence  and  superfluousness  of 

the   arguments,    however   able The    only 

results  of  the  Dred  Scott  Case  were  to  damage  the 
prestige  of  the  Court  in  the  North,  and  to  stimulate  a 
sectional  hostility  which  threatened  to  recoil  upon  the 
heads  of  the  judges  themselves."  As  a  consequence, 
the  great  nationalizing  decision  which  the  Court  soon 
made  in  the  case  of  Ableman  v.  Booth,  was  looked  upon 
throughout  the  free  States  as  tinged  with  pro-slavery 
views. 

Finally,  we  may  quote  the  view  of  one  of  the  members 
of  the  Supreme  Court  itself,  in  the  opinion  of  Mr. 
Justice  Brown,  who  said  in  1901  :i^s 

The  difficulty  with  the  Dred  Scott  Case  was  that  the  Court  re- 
fused to  make  a  distinction  between  property  in  general  and  a 
wholly  exceptional  class  of  property.  Mr.  Benton  tersely  stated 
that  distinction,  by  saying  that  the  Virginian  might  carry  his 
slave  with  him  into  the  Territory,  but  he  could  not  carry  with  him 
the  Virginia  law  which  made  him  a  slave. 

"8  Downs  V.  Bidwell,  182  U.  S.  Rep.  244. 


CHIEF  JUSTICE  ROGER  BROOKE  TANEY 

From  a  porlrait  by  Richard  Blossom  Farley,  owned  by  Dickinson  College 


CHAPTER  XIII 

The  End  of  the  Era  (1856-1861) 

Although  the  Dred  Scott  Case  was  by  far  the  most 
important  one  decided  by  the  Supreme  Court  in  the 
December  term  of  1856,  it  was  not  the  only  one  in  which 
Taney  filed  an  opinion. ^  In  a  suit  for  a  mandamus,  to 
order  a  Minnesota  Court  to  vacate  an  order  of  disbar- 
ment, he  upheld  the  Court  as  performing  a  judicial  act 
within  the  scope  of  its  jurisdiction. ^  The  rights  of  a 
patentee  were  held  not  to  extend  to  a  foreign  vessel 
entering  a  United  States  port,  equipped  with  the  patent- 
ed invention  in  the  foreign  country.  The  invention 
was  only  used  while  sailing.  The  plaintiff's  contention 
would  confer  on  patentees  political  power,  in  the  Court's 
opinion,  and  enable  them  to  embarrass  the  treaty-making 
power  and  the  Congressional  power  to  regulate  foreign 
commerce.^ 

In  a  case  concerning  a  lien  upon  a  vessel,  the  barque 
Laura  of  Plymouth,  for  repairs  made  in  Chile,  Taney 
filed  a  long  dissenting  opinion,  in  which  McLean  and 
Wayne  joined  him.  The  freight  money  would  have 
paid  for  the  repairs,  but  for  the  diversion  of  the  vessel's 
course  by  the  master,  with  the  assistance  of  the  libel- 

1  Minor  opinions  of  his  were:  (1)  Prevost  v.  Greneaux,  19  Howard  7  (Inher- 
itance tax  of  Louisiana  upon  foreigners  approved) ;  (2)  Morgan  v.  Curtinies 
19.  Howard  8  (Record  imperfect  and  no  counsel  for  defendant-case  con- 
tinued) ;  (3)  Shaffer  v.  Scradley  19  Howard  16  (Supreme  Court  had  no  jurisdic- 
tion to  review  decision  of  Louisiana  Court  as  to  land  in  that  State) ;  (4)  Stramer 
V.  West  19  Howard  182  (Appeal  not  taken  in  time),  (5)  Burke  v.  Gaines  19  How- 
ard 388  (Ejectment). 

2  Ex  parte  Secombe,  19  Howard  9. 

3  Brown  v.  Duchesne,  19  Howard  183. 

419 


420  ROGER  BROOKE  TANEY 

lants,  and  no  lien  was  allowed  them  by  the  Court, 
Justice  Curtis  rendering  the  opinion.^  Taney  main- 
tained that  almost  the  whole  of  the  coasting  trade  was 
carried  on  by  New  England  vessels  under  similar  con- 
tracts, with  masters  "sailing  upon  a  lay,"  as  it  was  called. 
The  captain  was  master  of  the  vessel  at  the  time  and 
not  the  owners.  Taney  retained  the  same  opinion, 
which  he  had  held  in  the  Circuit  Court. 

Taney's  most  important  opinion  at  the  December 
Term  of  1857  was  also  a  dissenting  one,  which  Biddle^ 
styled  as  being  so  strong  "as  to  leave  the  professional 
mind  in  a  considerable  state  of  incertitude."^  The  case 
involved  a  vessel  which  had  been  seized  under  an  at- 
tachment issuing  from  a  Pennsylvania  Court.  After- 
wards a  libel  had  been  filed  in  the  United  States  Dis- 
trict Court  for  mariner's  wages.  The  Court's  decision 
was  that  this  libel  did  not  divest  the  State  Court  of 
jurisdiction.  Taney  considered  the  case,  not  as  one  con- 
cerning the  relative  powers  of  State  and  Nation;  but 
merely  as  one  of  relative  powers  and  duties  of  Admiralty 
and  Common  Law  Courts.  Each  has  its  appropriate 
sphere  of  action.  The  Court  of  Common  Law  has  no 
right  to  place  itself  within  the  sphere  of  action  appro- 
priated peculiarly  to  the  Admiralty  Court  and  thereby 
to  impede  it  in  the  discharge  of  duties  imposed  on  it  by 
the  Constitution  and  laws.  The  lien  of  seamen  is  a  first 
and  paramount  claim  upon  a  vessel.  No  Court  of  Com- 
mon Law  can  enforce,  or  displace  this  claim.  A  general 
creditor  of  a  ship  owner  has  no  lien  on  a  vessel  and  the 
sheriff  had  in  his  legal  custody  only  the  interest  of  the 

*  Thomas  v.  Osborn,  19  Howard  22.    Taney's  dissent  at  p.  33. 
5  Const.  Hist.,  p.   185. 

*  Taylor  v.  Carryle,  20  Howard  583.  Taney's  dissent  is  at  pp.  601  &  £f. 
Three  justices  agreed  with  him.  See  Connor's  Campbell,  p.  49.  Connor  refers 
to  Taney's  "spirited  and  strong"  opinion. 


ROGER  BROOKE  TANEY  421 

owner,  after  the  liens  had  been  heard  and  adjudicated. 
Otherwise,  seamen  might  have  to  wait  twelve  months 
for  payment.  Neither  a  State  nor  a  Federal  Court  of 
Common  Law  can  impede  an  Admiralty  Court.  If 
the  Court  ''intended  to  say  that,  in  the  administration 
of  judicial  power,  the  tribunals  of  the  States  and  the 
United  States  are  to  be  regarded  as  the  tribunals  of 
separate  and  independent  sovereignties,  dealing  with 
each  other  in  this  respect  upon  the  principles  which 
govern  the  comity  of  nations,  I  cannot  assent  to  it.  The 
Constitution  of  the  United  States  is  as  much  a  part  of 
the  law  of  Pennsylvania  as  its  own  constitution  and  the 
laws  passed  by  the  General  Government,  pursuant  to 
the  Constitution,  are  as  obligatory  upon  the  Courts  of 
the  States,  as  upon  those  of  the  United  States ;  and  they 
are  equally  bound  to  respect  and  uphold  the  acts  and 
process  of  the  courts  of  the  United  States,  when  acting 
within  the  scope  of  its  legitimate  authority."  After 
this  discriminating  statement  of  the  relation  of  Federal 
and  State  Courts,  Taney  continued;  "the  Court,  which 
has  no  jurisdiction  over  the  subject  matter,  must  not 
lay  hold  of  some  other  interest  and,  therefore,  withdraw 
maritime  liens  from  the  Admiralty  Court  for  an  inde- 
finite period."  Pennsylvania  can  have  no  admiralty 
court  and,  therefore,  has  no  concurrent  jurisdiction  in 
the  matter. 

With  emphasis,  Taney  states  that:  "While,  in  my 
judgment,  this  court  should  be  the  last  court  in  the 
Union  to  exercise  powers  not  authorized  in  the  Con- 
stitution, it  should  be  the  last  court  in  the  Union  to 
retreat  from  duties  which  the  Constitution  and  laws 
have  imposed."     He  pays  Coke^  this  tribute:  ''Every 

^Further  on  in  the  opinion,  he  wrote:  "These  jealousies  and  suspicions  of 
Lord  Coke  undoubtedly  grew  out  of  the  vehement  conflicts,  personal  as  well 
as  political,  in  which  he  was  so  prominently  engaged  during  all  his  life-time." 


422  ROGER  BROOKE  TANEY 

one  who,  in  early  life,  has  passed  through  the  usual 
studies  of  the  Common  Law  feels  the  influence  of  his 
opinions  afterwards  in  all  matters  connected  with  legal 
inquiries,"  but  Coke  was  too  bitter  in  his  opposition  to 
the  admiralty  court.  At  the  time  when  Taney  wrote 
this  opinion,  he  thought  that,  if  one  looked  for  "examples 
worthy  respect  and  commendation"  in  English  law,  these 
examples  are  found  in  the  ''elevated  and  enlightened 
character  of  its  present  courts  of  justice  and  their  mutual 
respect  and  consideration  for  the  rights  and  authority 
of  each  other,  without  any  display  of  jealousy  or  sus- 
picion."    Taney  continued  with  the  statement: 

I  can  see  no  grounds  for  jealousy,  or  enmity,  to  the  admiralty 
jurisdiction.  It  has  in  it  no  quality  inconsistent  with,  or  unfavor- 
able to,  free  institutions.  The  simplicity  and  celerity  of  its  pro- 
ceedings make  a  jurisdiction  of  that  kind  a  necessity,  in  every  just 
and  enlightened  commercial  nation.  The  delays  unavoidably 
involved  in  a  Court  of  Common  Law,  from  its  rules  and  modes  of 
proceeding,  are  equivalent  to  a  denial  of  justice,  where  rights  of 
seamen,  or  maritime  contracts,  or  torts,  are  concerned  and  sea- 
faring men  are  the  witnesses  to  prove  them,  and  the  public  con- 
fidence is  conclusively  proved,  by  the  well  known  fact,  that  in  the 
great  majority  of  cases,  where  there  is  a  choice  of  jurisdictions,  the 
party  seeks  his  remedy  in  the  court  of  admiralty,  in  preference  to 
the  Court  of  Common  Law  of  the  State,  however  eminent  and 
distinguished  the  State's  tribunal  may  be.^ 

8  Minor  cases  in  which  Taney  filed  opinions  for  the  Court  are:  (1)  Brown 
V.  Shannon,  20  Howard  55  (jurisdiction,  patent  rights) ;  (2)  Thompson  v.  Shelden, 
20  Howard  (continuance  of  case) ;  (3)  Carroll  v.  Dorsey,  20  Howard  204  (writ 
of  error);  (4)  Payne  v.  Niles,  20  Howard  219  (writ  of  error);  (5)  Covington 
Drawbridge  Co.  v.  Shepherd,  20  Howard  227  (jurisdiction,  citizenship);  (6)  U.  S. 
V.  Breitling,  20  Howard  252  (Bill  of  exceptions);  (7)  Hemmingway  v.  Fisher 
(Admiralty  Judgment),  20  Howard  255;  (8)  U.  S.  v.  Pacheco,  20  Howard  261 
(appeal,  length  of  time) ;  (9)  Barton  v.  Forsyth,  20  Howard  532  (Exceptions 
must  be  taken  while  the  jury  are  at  the  bar). 


ROGER  BROOKE  TANEY  423 

Two  cases  were  concerned  with  the  bonds  of  the  State 
of  Arkansas. 9  ''Those  who  deal  in  the  bonds  or  obHga- 
tions  of  a  sovereign  State  are  aware  that  they  must  rely 
altogether  on  the  sense  of  justice  and  good  faith  of  the 
State,  and  that  the  judiciary  of  the  State  cannot  inter- 
fere to  enforce  these  contracts  without  the  consent  of 
the  State,  and  the  Courts  of  the  United  States  are  express- 
ly prohibited  from  exercising  such  a  jurisdiction."  If 
the  suitor  refused  to  file  his  bonds  in  Court,  the  Court 
cannot  inquire  whether  the  law  acted  hardly,  or  un- 
justly.io 

In  1858,  Taney  handled  the  subject  of  the  demarca- 
tion of  the  control  of  Congress  over  commerce  and  the 
right  of  municipalities  to  protect  themselves  with  his 
*' accustomed  ability,  "^^  in  deciding  the  case  of  Cushing 
V.  Owners  of  the  Ship, /o/jw  Eraser, ^'^  holding  therein  that 
an  ordinance  of  the  City  of  Charleston  as  to  a  vessel  in 
the  harbor,  determining  where  it  might  lie,  for  how  long, 
and  with  what  light,  was  not  in  conflict  with  the  law  of 
Congress  regulating  commerce,  or  with  the  general 
admiralty  jursidiction  of  the  United  States,  but  was 
valid. ^3     In  Converse  v.  Greeley ^^  the  Court  held  that 

^  Beers  v.  Arkansas,  20  Howard  527,  and  Bank  of  Washington  v.  Arkansas, 

20  Howard  530. 

^°  In  Selden  v.  Myers,  20  Howard  506,  Taney  said  that  a  person  taking  a 
promissory  note  and  deed  in  payment  for  a  restaurant  in  the  District  of  Colum- 
bia, from  an  illiterate  man  must  show,  in  order  to  enforce  his  claim,  that  at 
least  the  material  parts  of  the  instruments  were  read  and  fully  explained  to  the 
illiterate  person  before  execution  and  that  the  signer  fully  understood  their 
meaning  and  effect.  If  this  fact  is  not  established,  parol  evidence  is  not  admit- 
ted to  show  that  the  contract  was  really  different  from  the  writing. 

11  Biddle,  Const.  Hist.,  186. 

12  21  Howard  185.    A  collision  case. 

13  Minor  decisions  at  this  term  were  (1)  Richmond  v.  Milwaukee  (Appeal), 

21  Howard  80  and  391;  (2)  Rau  v.  Minn.  &  N.  W.  R.  Co.  (Motion  to  dismiss), 
21  Howard  82;  (3)  Kelsey  v.  Forsyth  (Procedure),  21  Howard  85;  (4)  Ins.  Co.  of 
Valley  of  Va.  v.  Mordecai  (writ  of  error),  21  Howard  195;  (5)  Campbell  v. 


424  ROGER  BROOKE  TANEY 

the  Secretary  of  the  Treasury  could  not  order  a  collector 
to  perform  duties  outside  of  the  light  house  district  of 
which  he  was  superintendent,  without  extra  pay  for  the 
additional  services.  The  law  does  not  forbid  compensa- 
tion for  extra  services  which  have  no  affinity  or  connec- 
tion with  th^  duties  of  the  office  holder,  Taney  said, 
speaking  for  the  Court. 

In  a  divorce  case,^^  Taney  dissented  without  an  opinion 
from  a  decision  by  the  Court  upholding  a  Wisconsin 
divorce,  secured  there  by  a  husband,  who  went  to  that 
State  after  his  wife  had  secured  a  judicial  separation 
from  him  in  New  York. 

Taney's  most  important  opinion,  however,  of  the  year 
1858  was  that  in  the  case  of  Ableman  v.  Booth^^  and  it 
was  to  Taney's  own  mind  one  of  his  ''most  satisfactory 
opinions. "1^  There  were  two  cases,  both  constituting 
one  transaction  and  disposed  of  in  one  unanimous  deci- 
sion of  the  Court. ^^    Sherman  M.  Booth  was  accused  of 

Boyreau  (writ  of  error),  21  Howard  225;  (6)  Montgomery  v.  Anderson  (Juris- 
diction of  Circuit  Court  in  Admiralty)  21  Howard  386;  (7)  Baltimore  v.  For- 
syth (Jurisdiction),  21  Howard  389;  (8)  Mason  v.  Gamble  (writ  of  error), 
21  Howard  390;  (9)  Porter  v.  Foley  (writ  of  error),  21  Howard  393. 

14  21  Howard  462. 

15  Barber  v.  Barber,  21  Howard  600. 

16  21  Howard  506;  Tyler,  p.  608.  See  Daniel  W.  Howe  "Political  History 
of  Secession,"  Chapter  XI. 

1^  Tyler,  p.  392.  Carson  "Supreme  Court,"  p.  293,  considers  that  Taney 
was  "most  emphatic  in  the  maintenance  of  the  supremacy  of  the  Federal 
Law."    See  also  T.  W.  Balch  "A  World  Court,"  p.  67. 

18  Willoughby,  "Supreme  Court  of  the  United  States,"  pp.  46,  50,  is  severe 
in  his  criticism  of  this  (pinion,  writing  that  Taney,  "in  his  analysis  of  govern- 
ment, never  got  further  back  than  the  State.  If  we  were  to  accept  the  rea- 
soning found  in  Taney's  opinion,  it  was  the  people  of  the  States,  and  never 
the  people  in  their  sovereign  capacity,  who  acted  throughout  the  period  of 
constitution-making  from  1765  to  1789."  "In  considering  Taney's  attitude 
in  this  case,  we  may,  possibly,  be  warranted  in  remembering  that,  in  this  par- 
ticular instance,  the  Federal  law  which  he  was  upholding  was  one  passed  in  the 
interests  of  the  slaveholding  party,  with  which  his  sympathies  lay." 


ROGER  BROOKE  TANEY  425 

having  aided,  on  March  11,  1854,  in  the  escape,  at  Mil- 
waukee, Wisconsin,  of  a  fugitive  slave  from  the  deputy 
marshal,  who  held  the  negro  in  custody  under  a  warrant 
issued  by  the  United  States  District  Judge,  in  accordance 
with  the  provisions  of  the  Fugitive  Slave  Law  of  1850. 
That  law,  a  part  of  Clay's  last  Compromise,  so  far  from 
settling  the  slave  question,  had  greatly  exacerbated  con- 
ditions and,  by  its  questionable  provisions,  had  aroused 
the  wrath  of  the  people  of  the  Free  States.  In  several  of 
the  Northern  States,  so-called  Personal  Liberty  Laws 
were  passed,  in  the  effort  to  nullify  the  Federal  Statute. 
Booth  was  arrested  and,  on  May  26,  was  committed 
to  jail,  in  custody  of  the  United  States  Marshal.  On 
the  following  day,  he  applied  to  a  judge  of  the  Wisconsin 
Supreme  Court  for  a  writ  of  habeas  corpus,  stating  that 
Stephen  V.  R.  Ableman  the  Marshal,  restrained  him  of 
his  liberty,  illegally,  because  the  arrest  was  made  under 
the  Fugitive  Slave  law  of  1850  which  was  unconstitu- 
tional. Upon  the  hearing,  the  Justice  decided  that 
Booth's  detention  was  illegal  and  freed  him.  Ableman 
then  applied  to  the  Supreme  Court  for  a  writ  of  cer- 
tiorari, so  that  the  proceedings  at  the  hearing  might 
be  brought  before  that  Court  for  revision.  The  cer- 
tiorari was  allowed  and  the  case  was  argued  in  July, 
after  which  argument  the  Court  affirmed  the  decision, 
discharging  Booth  from  imprisonment.  In  October, 
Ableman  sued  out  a  writ  of  error  to  the  United  States 
Supreme  Court  and,  in  obedience  thereto,  the  record 
and  proceedings  were  duly  certified  by  the  State  Court's 
clerk.  Booth  then  in  December  1854,  filed  a  memoran- 
dum in  the  United  States  Supreme  Court,  submitting 
it  as  his  argument.  After  the  judgment  was  entered  in 
the  State  Court  and  before  the  writ  of  error  was  sued 
out,  that  Court  entered  upon  its  record  that,  in  the  final 


426  ROGER  BROOKE  TANEY 

judgment,  the  validity  of  the  Fugitive  Slave  Acts  was 
drawn  in  question  and  the  decision  was  against  their 
validity.  This  certificate  was  not  necessary  to  give  the 
Federal  Court  jurisdiction,  because  the  proceedings  on 
their  face  showed  that  these  questions  arose  and  how 
they  were  decided;  but  it  showed  "that,  at  that  time," 
in  Taney's  words,  "the  Supreme  Court  of  Wisconsin  did 
not  question  their  obligation  to  obey  the  writ  of  error, 
nor  the  authority"  of  the  Federal  Court  to  "reexamine 
their  judgment,"  and  "the  certificate  is  given  for  the 
purpose  of  placing,  distinctly,  on  the  record  the  points 
that  were  raised  and  decided  in  that  Court,  in  order  that 
this  Court  might  have  no  difficulty  in  exercising  its 
appellate  power  and  pronouncing  its  judgment  upon  all 
of  them." 

On  January  4,  1855,  Booth  was  indicted  in  the  United 
States  Court  for  the  offence  and,  having  been  tried  by  a 
jury,  was  found  guilty,  on  January  23,  1855,  and  was 
sentenced  to  imprisonment  for  one  month  and  to  pay  a 
fine  of  $1000.  On  January  26,  Booth  applied  to  the 
Supreme  Court  of  Wisconsin  and  was  released,  on  Feb- 
ruary 3,  after  a  hearing,  on  a  writ  of  habeas  corpus. 
The  Attorney  General  of  the  United  States  then  made 
a  petition  to  the  Chief  Justice  of  the  Supreme  Couit  of 
the  United  States,  stating  the  facts  in  the  case  and  aver- 
ring that  the  State  Court  had  no  jurisdiction.  A  writ 
of  error  was  issued  and  served  on  the  clerk  of  the  Su- 
preme Court  of  Wisconsin  on  May  30,  1855.  No  return 
was  made  to  this  writ  and  the  district  attorney  made 
affidavit  that  one  of  the  Judges  of  the  State  Court  told 
him  that  that  Court  had  directed  the  clerk  to  make  no 
return,  and  to  enter  no  orders  upon  the  records  of  the 
Court  concerning  it.  The  United  States  Supreme 
Court  then,  on  the  motion  of  the  Attorney  General, 


ROGER  BROOKE  TANEY  427 

laid  a  rule  on  the  clerk  to  make  a  return  to  the  writ  of 
error.  This  was  not  done  and  the  Attorney  General  was 
given  leave,  in  February  1857,  to  file  a  certified  copy  of 
the  record  in  the  State  Court,  which  should  have  the 
same  effect,  as  if  returned  by  the  clerk  with  the  writ  of 
error.  The  Wisconsin  Judges  behaved  as  badly  as  pos- 
sible for  men  who  had  taken  an  oath  to  support  the 
Constitution  of  the  United  States,  and  their  court  was 
as  contumacious  as  the  South  Carolinians  were  a  few 
months  later,  while  the  defendant  was  so  indifferent 
that  he  was  not  represented  by  counsel.  The  Supreme 
Court  did  not  permit  this  judicial  nulification  of  Federal 
authority  to  go  uncondemned.  After  waiting  until  the 
two  cases  were  ready  for  decision,  the  Attorney  General 
was  heard  for  the  prosecution  and  Taney  delivered  the 
opinion  of  the  Court,  having  the  pamphlet  arguments 
filed  by  Booth  and  opinions  of  the  Supreme  Court  of 
Wisconsin  before  them,  to  show  the  grounds  on  which 
the  defence  could  rely. 

Taney  called  attention  to  the  fact  that,  in  the  first 
case,  the  State  authorities  claimed  the  right  to  discharge 
a  prisoner  who  had  been  committed  by  a  United  States 
Commissioner  for  an  offence  against  a  national  law  and, 
in  the  second  case,  the  State  Supreme  Court  went  a  "step 
further"  and,  upon  a  "summary  and  collateral  proceed- 
ing" by  habeas  corpus,  claimed  and  exercised  jurisdiction 
over  the  proceedings  and  judgment  of  a  District  Court  of 
the  United  States,"  and  then  "determined  that  their 
decision  is  final  and  conclusive  upon  all  the  Courts  of  the 
United  States  and  ordered  their  clerk  to  disregard  and 
refuse  obedience  to  the  writ  of  error  issued"  by  the 
National  Supreme  Court.  The  gravity  of  the  case  was 
shown  by  Taney's  statement  that  "the  supremacy  of  the 
State  Courts  over  the  courts  of  the  United  States  is  now, 


428  ROGER  BROOKE  TANEY 

for  the  first  time,  asserted  and  acted  upon  in  the  Supreme 
Court  of  a  State."  The  Chief  Justice's  language  is 
calm  and  temperate,  but  his  tone  is  firm.  He  strikes  at 
the  heart  of  the  matter,  when  he  states  that  **the  para- 
mount power  of  the  State  Court  lies  at  the  foundation  of 
these  decisions;"  since  their  "commentaries"  upon  the 
fugitive  slave  law  were  "out  of  place,"  unless  "they  had 
the  power  to  revise  and  control  the  proceedings"  in  this 
case.  Their  acts  "can  rest  upon  no  other  foundation." 
How  can  anyone  speak  of  Taney  as  a  States  rights  man 
after  reading  this  opinion? 

The  alternative  was  a  stern  one;  for, 

If  the  judicial  power,  exercised  in  this  instance,  has  been  reserved 
to  the  States,  no  ojffence  against  the  laws  of  the  United  States 
can  be  punished  by  their  own  courts,  without  the  permission, 
and  according  to  the  judgment,  of  the  Courts  of  the  State  in  which 
the  party  happens  to  be  imprisoned;  for,  if  the  Supreme  Court  of 
Wisconsin  possessed  the  power  it  has  exercised,  in  relation  to 
offences  against  the  act  of  Congress  in  question,  it,  necessarily, 
follows  that  they  must  have  the  same  judicial  authority  in  relation 
to  any  other  law  of  the  United  States And,  more- 
over, if  the  power  is  possessed  by  the  Supreme  Court  of  the  State 
of  Wisconsin,  it  must  belong  equally  to  every  other  State,  when 
the  prisoner  is  within  its  territorial  limits;  and  it  is  very  certain 
that  the  State  courts  would  not  always  agree  in  opinion;  and  it 
would  often  happen  that  an  act,  which  was  admitted  to  be  an 
offence,  and  justly  punished,  in  one  State,  would  be  regarded  as 
innocent,  and,  indeed,  as  praiseworthy  in  another. 

The  inconvenience  of  doing  away  with  the  supremacy 
of  the  Federal  tribunals  could  hardly  be  stated  more 
clearly.  Taney  felt  that  to  state  this  result  of  a  lack  of 
Federal  supremacy  showed  the  essential  need  of  it. 
Hard  cases,  proverbially,  make  bad  law  and  the  hard 
case  of  a  fugitive  negro,  seized  under  an  oppresive  statute 


ROGER  BROOKE  TANEY  429 

had  led  the  Wisconsin  Court  to  take  indefensible  action. 
^'No  one  will  suppose,"  Taney  continued  with  indis- 
putable logic,  ''that  a  Government,  which  has  now  lasted 
nearly  seventy  years,  enforcing  its  laws  by  its  own  tri- 
bunals and  preserving  the  union  of  the  States,  could  have 
lasted  a  single  year,  or  fulfilled  the  high  trusts  committed 
to  it,  if  offences  against  its  laws  could  not  have  been 
punished,  without  the  consent  of  the  State  in  which  the 
culprit  was  found." 

The  Wisconsin  judges  did  not  state  whence  they 
claimed  this  authority,  but  Taney  places  them  in  this 
dilemma,  that  if  they  possess  this  jurisdiction,  "they 
must  derive  it  either  from  the  United  States,  or  the 
State."  The  United  States  did  not  confer  it  upon  them 
and  the  State  could  not  do  so,  since,  "although  the  State 
of  Wisconsin  is  sovereign  within  its  territorial  limits  to  a 
certain  extent,  yet  that  sovereignty  is  limited  and  re- 
stricted by  the  Constitution  of  the  United  States.  And 
the  powers  of  the  General  Government,  and  of  the  State, 
although  both  exist  and  are  exercised  within  the  same 
territorial  limits,  are  yet  separate  and  independent 
sovereignties,  acting  separately  and  independently  of 
each  other  within  their  respective  spheres.  And  the 
sphere  of  action  appropriated  to  the  United  States  is  as 
far  beyond  the  reach  of  the  judicial  process  issued  by  a 
State  judge,  or  a  State  court,  as  if  the  line  of  division  was 
traced  by  a  line  of  landmarks  and  monuments,  visible 
to  the  eye."  Taney  felt  that  it  was  due  to  the  State 
to  say  that  this  "claim  of  paramount  jurisdiction  in  the 
State  Courts  over  the  courts  of  the  United  States"  is 
not  "asserted,  or  countenanced,  by  the  Constitution  or 
laws  of  the  State  of  Wisconsin"  and,  indeed,  the  State 
Court's  decision  appeared  to  be  flatly  against  a  State 
Statute. 


430  ROGER  BROOKE  TANEY 

Taney  then,  in  noble  language,  reiterated  his  state- 
ment that 

Questions  of  this  kind  must  always  depend  upon  the  Constitu- 
tion and  laws  of  the  United  States,  and  not  of  a  fetate.  The  Con- 
stitution was  not  formed  merely  to  guard  the  States  against  danger 
from  foreign  nations;  but  mainly  to  secure  union  and  harmony 
at  home;  for,  if  this  object  could  be  attained,  there  would  be  but 
little  danger  from  abroad;  and,  to  accomplish  this  purpose,  it  was 
felt  by  the  statesmen  who  framed  the  Constitution  and  by  the  peo- 
ple who  adopted  it,  that  it  was  necessary,  that  many  of  the  rights 
of  sovereignty  which  the  States  then  possessed,  should  be  ceded 
to  the  general  government;  and  that,  in  the  sphere  of  action 
assigned  to  it,  it  should  be  supreme,  and  strong  enough  to  execute 
its  own  laws,  by  its  own  tribunals,  without  interruption  from  a 
State,  or  from  State  authorities.  And  it  was  evident  that  anything 
short  of  this  would  be  inadequate  to  the  main  objects  for  which 
that  Government  was  established,  and  that  local  interests,  local 
passions,  or  prejudices,  incited  and  fostered  by  individuals  for 
sinister  purposes,  would  lead  to  acts  of  aggression  and  injustice 
by  one  State  upon  the  rights  of  another,  which  would  ultimately 
terminate  in  violence  and  force,  unless  there  was  a  common  arbiter 
between  them,  armed  with  power  enough  to  protect  and  guard 
the  rights  of  all,  by  appropriate  laws,  to  be  carried  into  execution 
peacefully  by  its  judicial  tribunals. 

In  these  sentences,  the  old  Federalist,  the  Attorney 
General  of  Andrew  Jackson  whose  toast  was  the  "Federal 
Union,  it  must  and  shall'be  preserved,"  the  successor  of 
John  Marshall,  spoke  worthily-  of  his  past  and  of  his 
predecessor. 

Taney  continued  his  great  argument  by  calling  atten- 
tion to  the  fact  that 

The  supremacy  thus  conferred  on  this  Government  could  not 
peacefully  be  maintained,  unless  it  was  clothed  with  judicial 
power,  equally  paramount  in  authority  to  carry  it  into  execution: 


ROGER  BROOKE  TANEY  431 

for,  if  left  to  the  courts  of  justice  of  the  several  States,  conflicting 
decisions  would  unavoidably  take  place,  and  the  local  tribunals 
could  hardly  be  expected  to  be  always  free  from  the  local  influences 
of  which  we  have  spoken.  And  the  Constitution,  and  laws  and 
treaties,  of  the  United  States  and  the  powers  granted  to  the 
Federal  Government,  would  soon  receive  different  interpretations 
in  different  States  and  the  Government  of  the  United  States  would 
soon  become  one  thing  in  one  State  and  another  thing  in  another. 
It  was  essential,  therefore,  to  the  very  existence  of  the  govern- 
ment, that  it  should  have  the  power  of  establishing  courts  of  justice, 
altogether  independent  of  State  power,  to  carry  into  effect  its  own 
laws,  and  that  a  tribunal  should  be  established,  in  which  all  cases 
which  might  arise  under  the  Constitution,  and  laws  and  treaties, 
of  the  United  States,  whether  in  a  State  Couf t,  or  a  court  of  the 
United  States,  should  be,  finally  and  conclusively,  decided.  With- 
out such  a  tribunal,  it  is  obvious  that  there  would  be  no  uniformity 
ot  judicial  decision;  and  that  the  supremacy,  ....  so 
carefully  provided  for,  ....  could  not  possibly  be 
maintained  peacefully,  unless  it  was  associated  with  this  paramount 
judicial  authority. 

Accordingly  it  was  conferred  on  the  General  Government,  in 

clear,  precise,  and  comprehensive  terms And  it  is 

manifest  that  this  ultimate  appellate  power,  in  a  tribunal  created 
by  the  Constitution  itself,  was  deemed  essential  to  secure  the 
independence  and  supremacy  of  the  general  Government  in  the 
sphere  of  action  assigned  to  it;  to  make  the  Constitution  and  laws 
of  the  United  States  uniform  and  the  same  in  every  State;  and  to 
guard  against  evils  which  would  inevitably  arise  from  conflicting 
opinions  between  the  Courts  of  a  State  and  the  United  States,  if 
there  was  no  common  arbiter  authorized  to  decide  between  them. 

Taney  pointed  out  that  "the  importance  which  the 
framers  of  the  Constitution  attached  to  such  a  tribunal, 
for  the  purpose  of  preserving  internal  tranquillity,  is 
strikingly  manifested  by  the  clause  which  gives  this 
Court  jurisdiction  over  the  sovereign  States  which  com- 
pose the   Union,   when   a   controversy   arises   between 


y 


432  ROGER  BROOKE  TANEY 

them,"  and  that  ''experience  has  demonstrated  that  this 
power  was  not  unwisely  surrendered  by  the  States;" 
since  "irritating  and  angry  controversies"  between  "ad- 
joining States,  in  relation  to  their  respective  boundaries," 
might  have  ended  in  ''force  and  violence,  but  for  the 
power  vested  in  this  Court." 

He  then  turned  to  the  power  of  the  Court  to  interpret 
the  laws. 

The  sovereignty  created  by  the  Constitution  was  limited  in  its 
powers  of  legislation;  and  if  it  passed  a  law  not  authorized  by  its 
enumerated  powers,  it  was  not  to  be  regarded  as  the  supreme  law 
of  the  land,  nor  were  the  State  judges  bound  to  carry  it  into 
execution.  And  as  the  Courts  of  a  State  and  the  Courts  of  the 
United  States  might  and,  indeed,  certainly  would  often  differ,  as 
to  the  extent  of  the  powers  conferred  by  the  General  Government, 
it  was  manifest  that  serious  controversies  would  arise  between  the 
authorities  of  the  United  States  and  of  the  States,  which  must  be 
settled  by  force  of  arms,  unless  some  tribunal  was  created  to  decide 
between  them  finally  and  without  appeal. 

The  Constitution  contained  a  provision  against  this 
danger,  by  placing  within  the  jurisdiction  of  the  Federal 
Courts  "all  cases  arising  under  the  Constitution  and  the 
laws  of  the  United  States,"  leaving  out  the  words 
"made  in  pursuance  thereof,"  as  applied  to  the  laws; 
so  that  "the  judicial  power  covers  every  legislative  act 
of  Congress,  whether  it  be  made  within  the  limits  of  its 
delegated  powers,  or  be  an  assumption  of  power  beyond 
the  grants  in  the  Constitution." 

He  pointed  out  that  "this  judicial  power"  was  "in- 
dispensable, not  merely  to  maintain  the  supremacy  of 
the  laws  of  the  United  States,  but  also  to  guard  the  States 
from  any  encroachment  upon  their  reserved  rights  by 
the  General  Government."  As  a  consequence,  "by  the 
very  terms  of  the  grant,  the  Constitution  is  under  "the 


ROGER  BROOKE  TANEY  433 

judges'  view,  when  any  act  of  Congress  is  brought 
before  them,  and  it  is  their  duty  to  declare  the  law  void 
and  refuse  to  execute  it,  if  it  is  not  pursuant  to  the  legis- 
lative powers  conferred  on  Congress."  No  clearer  nor 
more  cogent  statement  of  the  rightfulness  of  the  Court's 
power  to  declare  laws  unconstitutional  was  ever  made. 

And,  as  the  final  appellate  power,  in  all  such  questions,  is  given 
to  this  Court,  controversies  as  to  the  respective  powers  of  the 
United  States  and  the  State,  instead  of  being  determined  by  mili- 
tary and  physical  force,  are  heard,  investigated,  and  finally  settled, 
with  the  calmness  and  deliberation  of  judicial  inquiry.  And  no 
one  can  fail  to  see  that  if  such  an  arbiter  had  not  been  provided  in 
our  complicated  system  of  government,  internal  tranquillity  could 
not  have  been  preserved;  and  if  such  controversies  were  left  to 
arbitrament  of  physical  force,  our  governments.  State  and  National, 
would  soon  cease  to  be  governments  of  laws,  and  revolutions  by 
force  of  arms  would  take  the  place  of  courts  of  justice  and  judicial 
decisions. 

To  prevent  the  danger  of  changing  the  tribunal,  be- 
cause of  ''individual  ambition  or  interests  and  powerful 
political  combinations,"  the  framers  of  the  government 
''ingrafted  it  upon  the  Constitution  itself."  "So  long 
.  .  .  as  this  Constitution  shall  endure,  this  tribunal 
must  exist  with  it;  deciding,  in  the  peaceful  forms  of 
judicial  proceeding,  the  angry  and  irritating  contro- 
versies between  sovereignties,  which,  in  other  countries, 
have  been  determined  by  the  arbitrament  of  force." 

The  Judiciary  Act  of  1789,  which  carried  "into 
execution  the  powers  vested  in  the  judicial  department" 
was  enacted  by  the  First  Congress  at  its  first  session, 
when  that  body  had  many  members,  who  had  been  also 
members  of  the  Constitutional  Convention  and  under- 
stood "the  meaning  and  intention  of  the  great  instru- 
ment, which  they  had  so  anxiously  and  deliberately 


vi 


434  ROGER  BROOKE  TANEY 

considered,  clause  by  clause,  and  assisted  to  frame." 
The  law  they  passed  proves  that  their  interpretation  of  the 
appellate  powers  of  the  Supreme  Court  was  that  which 
Taney  had  just  enunciated,  since  they  provided  for  the 
issuance  of  writs  of  error  from  the  Supreme  Court  to  a 
State  Court,  "whenever  a  right  had  been  claimed  under 
the  Constitution  or  laws  of  the  United  States,  and  the 
decision  of  the  State  Courts  was  against  it."  Thus  we 
see  the  "great  importance,  which  the  patriots  and  states- 
men of  the  First  Congress,  attached  to  this  appellate 
power,  and  the  foresight  and  care  with  which  they 
guarded  its  free  and  independent  exercise  against  inter- 
ference, or  obstruction  by  States,  or  State  tribunals." 

Next  he  turned  to  the  case  in  hand  and  sternly  said 
that  the  Supreme  Court  of  Wisconsin  "refuses  obedience 
to  the  writ  of  error  and  regards  its  own  judgment  as 
final.  It  has  not  only  reversed  and  annulled  the  judg- 
ment of  the  District  Court  of  the  United  States,  but  it 
has  reversed  and  annulled  the  provisions  of  the  Consti- 
tution itself  and  the  Act  of  Congress  of  1789,  and  made 
the  superior  and  appellate  tribunal  the  inferior  and 
subordinate  one." 

The  State  Judge  had  the  right  to  issue  the  writ  of 
habeas  corpus  in  any  case,  provided  that  it  "does  not 
appear,  when  the  application  is  made,  that  the  person 
imprisoned  is  in  custody  under  the  authority  of  the 
United  States;"  but,  when  the  State  Judge  is  "apprised" 
that  the  party  is  in  such  custody  he  "can  proceed  no 
further;"  for  he  then  knows  that  "the  prisoner  is  within 
the  jurisdiction  of  another  Government." 

No  State  Judge  or  Court,  after  they  are  judicially  informed  that 
the  party  is  imprisoned  under  the  authority  of  the  United  States, 
has  any  right  to  interfere  with  him,  or  to  require  him  to  be  brought 
before  them.    And  if  the  authority  of  a  State,  in  the  form  of 


r 


Vi 


r 


ROGER  BROOKE  TANEY  435 

^'udicial  process,  or  otherwise,  should  attempt  to  control  the 
marshal,  or  other  authorized  officer,  or  agent  of  the  United  States, 
in  any  respect,  in  the  custody  of  his  prisoner,  it  would  be  his  duty 
to  resist  it,  and  to  call  to  his  aid  any  force  that  might  be  necessary 
to  maintain  the  authority  of  law  against  illegal  interference. 

These  are  strong  and  fine  words. 
Taney  next  turns  to  view  the  question  from  the  side 
of  the  States. 

Nor  is  there  anything  in  this  supremacy  of  the  general  Govern- 
ment, or  the  jurisdiction  of  its  judicial  tribunals,  to  awaken  the 
jealousy,  or  offend  the  natural  and  just  pride  of  State  sovereignty. 
Neither  this  Government,  nor  the  powers  of  which  we  were  speak- 
ing, were  forced  upon  the  States.  The  Constitution  of  the  United 
States,  with  all  the  powers  conferred  by  it  upon  the  general  Gov- 
ernment and  surrendered  by  the  States,  was  the  voluntary  act  of 
the  people  of  the  several  States,  deliberately  done  for  their  own 
protection  and  safety  against  injustice.  And  their  anxiety  to 
preserve  it  in  full  force,  in  all  its  powers,  and  to  guard  against 
resistance  to,  or  evasion  of  its  authority,  on  the  part  of  a  State, 
is  proved  by  the  clause  which  requires  that  the  members  of  the 
State  Legislatures,  and  all  executive  and  judicial  officers  of  the 
several  States  (as  well  as  those  of  the  General  Government)  shall 
be  bound,  by  oath  or  affirmation,  to  support  the  Constitution.     .     . 

Now  it,  certainly,  can  be  no  humiliation  to  the  citizen  of  a  repub- 
lic to  yield  a  ready  obedience  to  the  laws,  as  administered  by  the 
constituted  authorities.  On  the  contrary,  it  is  among  his  first 
and  highest  duties  as  a  citizen,  because  free  government  cannot 
exist  without  it.  Nor  can  it  be  inconsistent  with  the  dignity  of  a 
sovereign  State  to  observe  faithfully,  and  in  the  spirit  of  sincerity 
and  truth,  the  compact  into  which  it  voluntarily  entered,  when  it 
became  a  State  of  this  Union.  On  the  contrary,  the  highest  honor 
of  sovereignty  is  untarnished  faith.  And,  certainly,  no  faith  could 
be  more  deliberately  and  solemnly  pledged  than  that  which  every 
State  has  plighted  to  the  other  States  to  support  the  Constitution 
as  it  is,  in  all  its  provisions,  until  they  shall  be  altered  in  the 
manner  which  the  Constitution  itseh  prescribes 


436  ROGER  BROOKE  TANEY 

And  no  power  is  more  clearly  conferred,  by  the  Constitution  and 
laws  of  the  United  States,  than  the  power  of  this  Court  to  decide, 
ultimately  and  finally,  all  cases  arising  under  such  Constitution 
and  laws;  and,  for  that  purpose,  to  bring  here  for  revision,  by  writ 
of  error,  the  judgment  of  a  State  Court,  where  such  questions 
have  arisen  and  the  right  claimed  under  them  denied  by  the 
highest  judicial  tribunal  in  the  State. 

In  conclusion,  and  by  way  of  brief  postscript,  so  "as 
not  to  be  misunderstood"  the  Court  stated  that,  on  its 
judgment,  the  Fugitive  Slave  Law  was,  ''in  all  its  pro- 
visions, fully  authorized  by  the  Constitution." 

The  opinion  is  remarkable  for  its  strength  and  viriliity, 
especially  when  we  remember  that  its  author  was  a  man 
eighty- two  years  old.  The  Federalist  teachings  of  his 
youth  had  not  been  forgotten  and  the  doctrines  learned 
in  youth  were  clearly  set  forth  by  him  in  his  old  age. 
It  is  the  irony  of  fate,  that  the  South,  which  rejoiced  at 
the  reversal  of  the  decree  of  the  Wisconsin  Court;  by 
its  secession  was  so  soon  to  traverse  and  flout  Taney's 
elaborate  constitutional  argument,  from  which  the 
North  and  West  gained  a  valuable  precedent,  though, 
for  the  most  part,  they  had  disliked  the  upholding  of  the 
Fugitive  Slave  Law. 

In  the  remainder  of  1859  and  in  the  early  months  of 
1860,  Taney  pronounced  only  two  decisions  of  the  court 
and  neither  of  these  is  of  importance. ^^  In  the  early 
portion  of  1860,  Taney  maintained  a  correspondence 
with  Van  Buren,  as  the  latter,  who  was  compiling  his 
memoirs,    asked    for    information.^^     In    these    letters, 

1^  (1)  Hodge  V.  Williams,  22  Howard  87,  (writ  of  error  cannot  be  amended); 
(2)  Brewster  v.  Warfield,  22  Howard  119,  (Interest  on  promissory  note  in  the 
Territory  of  Minnesota);  (3)  Haney  v.  Baltimore  Steam  Packet  Co.,  23  How- 
ard 287,  (collision  between  steamer  and  sailing  vessel  in  the  Chesapeake. 
Dissents,  in  long  opinion). 

20 10  Md.  Hist.  Mag.,  pp.  15  &  ff. 


ROGER  BROOKE  TANEY  437 

Taney  spoke  of  a  recent  illness  and  of  recovery  from  a 
fall,  of  his  having  burned  the  letters  which  he  had 
formerly  received  from  Van  Buren  and  of  the  good  care 
which  his  unmarried  daughter,  Ellen,  took  of  him. 

The  term  of  Court  which  began  in  December,  1860, 
virtually  closed  Taney's  important  opinions  as  Chief 
Justice  on  the  Bench  of  the  Supreme  Court;  for,  although 
he  lived  for  over  three  more  years  and  continued  to  hold 
his  post,  the  decision  in  the  case  of  Kentucky  v.  Denison^i 
is  his  last  noteworthy  one  delivered  in  Washington.  He 
delivered  a  brief  eulogy  upon  his  associate  Mr.  Justice 
Daniel  at  the  opening  of  the  term22  and  gave  the  decision 
of  the  Court  in  eight  cases  during  the  session. ^^  He 
held  that  a  stamp  duty  laid  by  California  on  bills  of 
lading  for  gold  or  silver  transported  from  the  State, 
was  a  tax  on  exports  and,  therefore,  invalid  and  that 
the  case  could  not  be  distinguished  in  principle  from 
Brown  v.  Maryland — Taney's  old  case  continually 
reappearing.  24 

Upholding  the  Federal  power,  he  held  that  a  corporate 
franchise  to  take  tolls  on  a  canal  can  not  be  seized  and 
sold  under  a  fieri  facias,  unless  the  proceedings  were 
authorized  by  a  Federal  Statute. ^^ 

21 24  Howard  66. 

22  24  Howard  VI. 

23  Minor  cases  were:  (1)  Sampson  v.  Welsh,  24  Howard  207  (libel  on  ship 
for  damages);  (2)  Wiggins  v.  Gray,  24  Howard  303  (Practice);  (3)  U.  S.  v. 
Curtis,  24  Howard  346  (Mexican  land  grant  in  California) ;  (4)  Lessee  of  Smith 
V.  McCann  (Ejectment  in  Maryland,  rather  an  important  case),  24  Howard 
398;  (5)  Riddall  v.  Bryan,  24  Howard  420  (Trespass,  Appeal  from  decree  of 
Maryland  Court  of  Appeals) ;  (6)  Tracy  v.  Holcombe,  24  Howard  426  (Final 
judgment) ;  (7)  Myra  Clark  Gaines  v.  Hennen,  24  Howard  553.  (Dissent. 
No  opinion.) 

24Almy  V.  Cal.,  24  Howard  169.  Biddle  praises  this  judgment.  Const. 
Hist.  188. 

25  The  Canal  was  that  from  Havre  de  Grace,  along  the  Susquehanna  River 
and  into  Pennsylvania.  Gue  v.  Tidewater  Canal  Co.,  24  Howard  257.  The 
case  was  an  appeal  from  the  Circuit  Court  in  Maryland. 


438  ROGER  BROOKE  TANEY 

The  decision  in  the  case  of  Kentucky  v.  Denison  was 
pronounced  by  Taney  on  March  13,  1861,  nine  days 
after  he  had  administered  the  oath  of  office  as  President 
to  Abraham  Lincoln. ^^  Biddle"  speaks  of  Taney's 
^'tone  of  almost  pathetic  dignity"  in  this  opinion  and 
Tyler  speaks  of  the  "calm,  serene  spirit  of  justice" 
which  pervaded  this  and  the  other  chief  opinions  of  his 
last  years  ;2 8  but  William  C.  Coleman,  an  able  Baltmore 
attorney,  in  a  recent  article,  pronounced  a  harsh  judg- 
ment upon  it:^^  **we  can  scarcely  call  it  reasoning,  fof 
it  is  totally  unconvincing  as  a  piece  of  Constitutional 
interpretation."  Taney's  ''reasoning  was  political,  not 
legal,"  and  though  the  case  is  still  of  authority,  it  seems 
to  Coleman  irreconcilable  with  the  undoubted  power 
granted  the  Federal  Government  by  the  Constitution^** 
to  carry  out  all  the  provisions  of  that  document. 

The  circumstances  of  the  case  were  that  a  Grand  Jury 
in  Kentucky  had  indicted  WilHs  Lago,  a  ''free  man  of 
color,  for  seducing  and  enticing  a  slave  to  leave  her 
master  and  aiding  and  assisting  the  said  slave  in  an 
attempt  to  make  her  escape."  Lago  fled  to  Ohio  to 
avoid  arrest  and  the  Governor  of  Kentucky  duly  re- 
quested the  delivery  of  Lago.  Governor  William  Deni- 
son of  Ohio,  by  the  advice  of  his  Attorney  General, 
refused  to  comply  with  this  demand,  whereupon  the 
State  of  Kentucky,  by  its  Governor,  Beriah  Magoffin, 
made  a  motion,  asking  Denison  to  show  cause  why  the 
Supreme  Court  should  not  issue  a  mandamus,  command- 
ing him  to  deliver  Lago,  to  the  Kentucky  authorities, 
that  he  might  be  removed  to  the  latter  State  for  trial. 

26  Tyler,  pp.  413,  626. 

27  Const.  Hist.,  p.  187. 
28Tyler,  p.  417. 

29  31  Harvard  L.  R.,  pp.  229,  233,  245.  October,  1917,  "The  State  as 
Defendant." 

30  Article  4,  Section  2. 


ROGER  BROOKE  TANEY  439 

Taney  delivered  the  opinion  of  the  unanimous  Court, 
^'sensible  of  the  importance  of  this  case  and  of  the  great 
interest  and  gravity  of  the  question  involved  in  it." 

By  a  careful  historical  investigation,  he  proved  that, 
in  all  cases  where  original  jurisdiction  is  given  by  the 
Constitution,  this  Court  has  authority  to  exercise  it, 
without  any  further  act  of  Congress  to  regulate  its  pro- 
cess; that  the  Governor  is  the  proper  officer  to  bring  a 
suit  for  a  State,  or  to  be  notified  as  representing  the 
State,  when  it  is  a  defendant;  and  that  the  writ  of 
mandamus  (being  no  longer  a  prerogative  writ  or  one  of 
grace)  is  the  only  mode  by  which  Kentucky's  claim  can 
be  enforced,  if  that  claim  is  a  rightful  one. 

He  then  quoted  the  Constitutional  provision  as  to  the 
interstate  extradition  of  criminals  and  stated  that  the 
words  *' treason,  felony,  or  other  crime"  "embrace  every 
act  forbidden  and  made  punishable  by  a  law  of  the 
State."  The  Governor  of  Ohio  insisted  that  the  words 
quoted  from  the  Constitution  ''must  be  restricted  and 
confined  to  offences  already  known  to  the  Common  Law 
and  to  the  usage  of  nations,  and  regarded  as  offences  in 
every  civilized  community  and  that  they  do  not  extend 
to  acts  made  offences  by  local  statutes,  growing  out  of 
local  circumstances,  nor  to  offences  against  ordinary  ^ 
police  regulations."  Taney  denied  the  correctness  of 
this  construction,  which  was  "founded  upon  an  obvious 
mistake  as  to  the  purposes  for  which  the  words  'treason 
and  felony'  were  introduced.  They  were  introduced  for 
the  purpose  of  guarding  against  any  restriction  of  the 
word  crime,  and  to  prevent  this  provision  from  being 
construed  by  the  rules  and  usages  of  independent  nations 
in  compacts  for  delivering  up  fugitives  from  justice." 
These  words  show  that  "this  compact  was  not  to  be 
regarded  or  construed  as  an  ordinary  treaty  for  extradi- 


440  ROGER  BROOKE  TANEY 

tion,  between  nations  altogether  independent  of  each 
other,  but  was  intended  to  embrace  poHtical  offences 
against  the  sovereignty  of  the  State,  as  well  as  all  other 
crimes." 

The  Constitution  was  declared  by  Taney  to  be  a 
"compact,"  binding  the  States  "to  give  aid  and  assist- 
ance to  each  other  in  executing  their  laws,  and  to  sup- 
port each  other,  in  preserving  order  and  law  within  its 
confines,  whenever  such  aid  was  needed."  He  main- 
tained that  "the  Statesmen  who  framed  the  Constitu- 
tion were  fully  sensible  that,  from  the  complex  character 
of  the  Government,  it  must  fail,  unless  the  States 
mutually  supported  each  other  and  the  general  Govern- 
ment, and  that  nothing  would  be  more  likely  to  disturb 
its  peace  and  end  in  discord,  than  permitting  an  offender 
against  the  laws  of  a  State,  by  passing  over  a  mathemati- 
cal line  which  divides  it  from  another,  to  defy  its 
process." 

Taney  then  showed  that  the  New  England  Confed- 
eration of  1 643  and  the  Articles  of  Confederation 
contained  clauses  providing  for  extradition  and  stated 
that  in  the  change  from  the  term  "high  misdemeanor" 
in  the  Articles  of  Confederation  to  the  word  "crime" 
in  the  Constitution  "the  deliberate  purpose"  was 
shown  to  "include  every  offence  known  to  the  law 
of  the  State  from  which  the  party  charged  had  fled." 
The  decision  asserted  that  "this  compact,  engrafted  in 
the  Constitution,  ....  gives  the  right  to  the 
executive  authority  of  the  State  to  demand  the  fugitive 
from  the  executive  authority  of  the  State  in  which 
he  is  found;  that  the  right  given  'to  demand'  implies 
that  it  is  an  absolute  right;  and  it  follows  that  there 
must  be  a  correlative  obligation  to  deliver,  without  any 
reference  to  the  character  of  the  crime  charged,  or  to 


ROGER  BROOKE  TANEY  441 

the  policy  or  laws  of  the  State  to  which  the  fugitive  has 
fled."  This  demand  may  be  made,  only  when  "the 
party  was  charged  in  the  regular  course  of  judicial  pro- 
ceedings," for  "the  Executive  Department  can  act  only 
in  subordination  to  the  judicial  Department,  where 
rights  of  person  or  property  are  concerned,  and  its  duty 
in  those  cases  consists  only  in  aiding  to  support  the 
judicial  process,  and  enforcing  its  authority,  when  its 
interposition  for  that  purpose  becomes  necessary,  and 
is  called  for  by  the  Judicial  Department."  He  then 
discussed  the  origin  and  provisions  of  the  act  of  1793, 
which  provided  for  the  procedure  of  such  extradition. 
Under  that  procedure,  the  duty  of  the  Governor  of  the 
State  where  the  fugitive  is  found,  was  "merely  minis- 
terial" and  "such  as  every  marshal  and  sheriff  must 
perform,  when  process,  either  criminal  or  civil,  is  placed 
in  his  hands."  "Whether  the  charge  against  Lago  was 
legally  and  sufficiently  laid  in  this  indictment,  according 
to  the  laws  of  Kentucky,"  in  Taney's  phrase,  "is  a 
judicial  question  to  be  decided  by  the  Courts  of  the 
State,  and  not  by  the  executive  authority  of  the  State 
of  Ohio." 

Yet, — oh !  lame  and  impotent  conclusion ! — the  opinion 
goes  on  to  state  that  "the  words,  'it  shall  be  the  duty,' 
were  not  used  as  mandatory  and  compulsory,  but  as 
declaratory  of  the  moral  duty  which  this  compact 
created."  Neither  the  Constitution,  nor  the  act  of 
Congress  provided  "any  means  to  compel  the  execution 
of  this  duty,  nor  inflict  any  punishment  for  neglect, 
or  refusal."  The  Court  believed  that  "such  a  power 
would  place  every  State  under  the  control  and  dominion 
of  the  general  government"  and  that  it  was  clear  that 
"the  Federal  Government,  under  the  Constitution,  has 
not  power  to  impose  on  a  State  officer,  as  such,  any  duty 


442  ROGER  BROOKE  TANEY 

whatever,  and  compel  him  to  perform  it."  The  final 
words  of  the  opinion  were  that,  "if  the  Governor  of  Ohio 
refuses  to  discharge  this  duty,  there  is  no  power  dele- 
gated to  the  General  Government,  either  through  the 
judicial  department,  or  any  other  department,  to  use  any 
coercive  means  to  compel  him." 

''And  upon  this  ground,  the  motion  for  the  mandamus 
must  be  overruled."  Though  the  conclusion  is  weak, 
yet  we  must  remember  that,  it  was  the  unanimous 
opinion  of  a  court,  of  which  all  of  the  members  but  one 
continued  loyal  to  the  Nation  throughout  the  whole  of 
the  war  and  that  it  was  determined  upon  by  them  just 
before  the  close  of  Buchanan's  administration,  when  so 
strong  a  Union  man  as  Horace  Greeley  opposed  coercion 
of  the  seceding  States  and  when  only  those  so  clear 
thinking  and  determined  as  Lincoln  contemplated  the 
possibility  of  bending  the  will  of  the  cotton  States,  so  as 
to  make  them  continue  in  the  Union. 

We  should  also  remember  that,  even  in  recent  days, 
the  Supreme  Court  has  had  great  difficulty  in  the  im- 
portant case  of  Virginia  v.  West  Virginia,  in  endeavoring 
to  find  a  method  to  enforce  its  decrees  against  a  State. 
Institutions  were  crashing  around  the  Court  and  we 
ought  the  rather  to  give  it  credit  for  pointing  men,  at 
this  terrible  crisis,  to  their  duty  to  obey  the  Constitution, 
even  if  the  Court  could  find  no  means  of  obliging  men 
to  perform  that  duty. 

This  was  the  last  of  Taney's  important  Supreme  Court 
opinions.  Biddle,^^  after  a  careful  study  of  them  all, 
calls  Taney  the  "able,  faithful,  and,  with  very  small 
exceptions,  the  correct  expositor"  of  the  Constitution. 

'1  Const.  Hist.,  p.  199.  He  says  that  a  "large  debt  of  gratitude  is  due" 
Taney  "from  members  of  the  profession  of  law,  students  of  constitutional  his- 
tory and  lovers  of  free  representative  government  throughout  the  world." 


ROGER  BROOKE  TANEY  443 

Four  tickets  bearing  the  names  of  Presidental  candi- 
dates solicited  the  support  of  the  voters  of  the  United 
States  in  1860.  John  C.  Breckenridge  represented  the 
Southern  Wing  of  the  Democratic  party  and  ran  upon  a 
platform,  which  said  that,  during  the  existence  of  a 
Territory,  ''all  citizens  of  the  United  States  have  an 
equal  right  to  settle  with  their  property  in  the  terro- 
tory," — that  is  to  say  carrying  their  slaves  with  them. 
Stephen  A.  Douglas  headed  the  Northern  wing  of  the 
Democrats.  They  and  their  leader  had  favored  popular 
or  squatter  sovereignty  in  the  territories,  and  had,  in 
their  platform,  a  plank  that  all  should  respect  ''the 
measure  of  restriction,  whatever  it  may  be,  imposed  by 
the  Federal  Constitution  on  the  power  of  the  Territorial 
legislature  over  the  subject  of  the  domestic  relations, 
as  the  same  has  been,  or  shall  be,  finally  determined  by 
the  Supreme  Court."  The  remnant  of  the  Whigs,  and 
the  Know-Nothings,  together  with  many  Border  State 
Union  men,  supported  John  Bell,  on  a  brief  platform, 
pledging  themselves  to  the  "Constitution  of  the  United 
States,  the  union  of  the  States  and  the  enforcement  of 
the  laws." 

The  Republicans,  representing  the  anti-slavery  senti- 
ment of  the  North  and  West,  headed  by  Abraham 
Lincoln,  claimed  that  the  "new  doctrine,  that  the  Con- 
stitution, of  its  own  force,  carries  slavery  into  any  or  all 
of  the  Territories  of  the  United  States  is  a  dangerous 
political  heresy.  "32  f^g  mere  statement  of  these  facts 
shows  how  far  the  Dred  Scott  decision  had  fallen  from 
settling  the  question  of  slavery  in  the  territories. 

During  the  campaign, ^^  a  communication,  designed 
probably  to  influence  the  votes  of  Roman   Catholics, 

32  Stanwood,  "History  of  the  Presidency,"  Chapter  21. 

33  Tyler,  p.  405. 


444  ROGER  BROOKE  TANEY 

appeared  in  a  newspaper,  stating  that  Taney  favored  the 
election  of  Douglas,  a  statement  so  unlikely  that  we 
hardly  need  any  assurance  that  it  was  incorrect.  George 
W.  Hughes,  a  Congressman  from  Maryland  and  an 
intimate  friend  of  Taney,  wrote  Taney,  asking  that  he 
might  be  permitted  to  contradict  the  statement.  On 
August  22,  1860,  Taney  answered  the  letter,  declining  to 
take  any  notice  of  an  anonymous  publication.  What- 
ever he  ''might  say,  or  authorize  to  be  said,  would  be 
regarded"  as  said  "by  Chief  Justice  of  the  Supreme 
Court  and  it  would  be  unseemly  in  that  officer  to  take 
any  notice  of  anonymous  publications  in  newspapers." 

To  answer  the  letter  would  give  it  too  much  im- 
portance and  Taney  had  never  seen  any  notice  taken  of 
it,  "although  I  am  accustomed  to  look  over  papers  on 
every  side  of  this  mixed  up  and  confused  election." 
Furthermore  any  authorized  contradiction  would  get  up 
discussions  about  Taney  "among  all  the  small  fry  politi- 
cians," who  could  use  this  opportunity  to  avoid  "dis- 
cussing the  great  principles  of  government,  which  are  in 
issue  in  the  election."  Taney  believed  that  the  members 
of  his  Church  in  Baltimore  were  "as  much  divided  as 
other  churches  and  vote  as  independently  of  leaders," 
as  any  citizens  do. 

Furthermore,  Taney  gave  his  rule  of  political  conduct: 

Every  one,  whose  opinion  is  worth  anything,  knows  that,  since 
I  have  been  on  the  Bench,  I  have  carefully  abstained  from  taking 
any  part  in  political  movements  or  elections;  and  that  I  have 
done  this  from  a  sense  of  duty,  and  under  the  firm  conviction  that 
any  other  course  would  destroy  the  usefulness  of  the  Supreme 
Court  and  create  the  belief  that  it  was  a  mere  party  body  and  act- 
ing for  the  interests  of  a  party. 

I  never  speak  upon  political  issues  of  the  day  in  public,  nor  in 
mixed  companies;  nor  do  I  enter  into  any  argument,  or  ever 


ROGER  BROOKE  TANEY  445 

express  any  opinion  to  friends  who  I  know  differ  from  me,  or  who 
I  think  may  be  so  inconsiderate  as  to  repeat  what  I  say,  in  a  way 
to  involve  my  name  in  public  discussions,  as  one  who  is  taking 
part  in  the  canvass,  and  supporting  or  opposing  a  particular 
candidate.  To  my  intimate  and  confidential  friends,  as  you  know, 
I  speak  freely  and  without  reserve. 

Abraham  Lincoln  was  elected  and,  on  the  day  upon 
which  he  took  the  oath  of  office  administered  to  him  by 
Taney,  he  said  in  his  inaugural: 

I  do  not  forget  the  position  assumed  by  some,  that  constitutional 
questions  are  to  be  decided  by  the  Supreme  Court;  nor  do  I  deny 
that  such  decisions  must  be  binding,  in  any  case,  upon  the  parties 
to  a  suit,  while  they  are  also  entitled  to  very  high  respect  and 
consideration  in  all  parallel  cases  by  all  other  departments  of  the 
Government.  And  while  it  is  obviously  possible  that  such  decision 
may  be  erroneous  in  any  given  case,  still  the  evil  effect  following 
it,  being  limited  to  that  particular  case,  with  the  chance  that  it 
may  be  overruled  and  never  become  a  precedent  for  other  cases, 
can  better  be  borne  than  could  the  evils  of  a  different  practice. 
At  the  same  time,  the  candid  citizen  must  confess  that,  if  the  policy 
of  the  Government,  upon  vital  questions  affecting  the  whole 
people,  is  to  be  irrevocably  fixed  by  decisions  of  the  Supreme  Court, 
the  instant  they  are  made  in  ordinary  litigation  between  parties 
in  personal  actions,  the  people  will  have  ceased  to  be  their  own 
rulers,  having  to  that  extent  practically  resigned  their  Government 
into  the  hands  of  that  eminent  tribunal. 

This  was  clearly  intended  and  skilfully  worded  as  an 
attack  upon  the  use  of  the  Dred  Scott  decision  as  a 
precedent.  Taney's  friends  held  up  their  hands  in 
horror,  exclaiming,  How  awful  a  political  heresy !  ^"^  yet 
Taney  himself,  as  the  instigator  and  defender  of  Jack- 
son's veto  of  the  recharter  of  the  United  States  Bank  and 

34Tyler,  p.  412. 


446  ROGER  BROOKE  TANEY 

as  the  courageous  author  of  the  opinion  in  the  Genessee 
Chief,  could  not  consistently  have  made  any  objection 
to  this  position. 

The  older  era  had  come  to  an  end.  Before  Lincoln's 
inauguration,  the  cotton  States  had  seceded  from  the 
Union.  Four  of  the  nine  justices  had  been  appointed 
from  slave  States.  Taney's  State,  Maryland,  did  not 
secede,  and  he  remained  silent,  giving  no  aid  to  dis- 
unionists,  nor  yielding  the  powerful  support  of  his  voice 
or  pen  to  the  successful  efforts  of  the  Unionist  leaders 
— Reverdy  Johnson  and  Henry  Winter  Davis.  Catron 
of  Tennessee  and  Wayne  of  Georgia  were  distinctly 
Union  men  and  refused  to  follow  their  States,  when 
these  seceded.  Campbell  of  Alabama  went  with  his 
State  and  resigned  from  the  Supreme  Court.  Before 
leaving  Washington,  on  April  29,  he  wrote  Taney^^ 
expressing 

the  profound  impression  that  your  eminent  qualities,  as  a  magis- 
trate and  jurist,  have  made  upon  me.  I  shall  never  forget  the 
uprightness,  fidelity,  learning,  thought,  and  labor,  that  have 
been  brought  by  you  to  the  consideration  of  the  judgments  of  the 
Court,  or  the  urbanity,  gentleness,  kindness,  and  tolerance  that 
have  distinguished  your  intercourse  with  the  members  of  the 
Court  and  Bar.  From  your  hands,  I  have  received  all  that  I  could 
have  desired  and,  in  leaving  the  court,  I  carry  with  me  feelings 
of  mingled  reverence,  affection,  and  gratitude. 

Taney's  life  continued  for  three  and  a  half  years  more, 
but  no  important  opinion  from  him  was  delivered  from 
the  Bench  of  the  Supreme  Court.  We  may,  therefore, 
here  sum  up  his  achievement  as  Chief  Justice.  His 
service  in  standardizing  the  practice  of  the  Court  is 
often  alluded  to  and  was  a  useful  one. 

3»  5  Md.  Hist.  Mag.  35. 


EOGER  BROOKE  TANEY  447 

Thayer  in  his  "Select  Cases  on  Constitutional  Law'* 
prints  Taney's  decisions  in  the  Charles  River  Bridge 
Case  (1837),  the  License  Cases  (1847),  Luther  v.  Borden 
(1848),  and  the  Dred  Scott  Case  (1857).  He  also  prints 
in  part  Dinsman  v.  Wilkes  (1851)  and  Mitchell  v. 
Harmony  (1851).  To  these,  one  may  well  add  Able- 
man  V.  Booth  (1859)  and  Kentucky  v.  Dennison  (1861). 

Above  any  other  opinion  in  importance  stands  the 
great  case  of  the  Genesee  Chief  (1851).  These  are  his 
great  decisions. 

T.  C.  Smith, 2^  after  a  careful  survey  of  the  period, 
thought  that  he  found,  from  the  time  of  Van  Buren, 
the  new  Democratic  judges  disposed  to  restrict  the 
activity  of  the  Court  to  purely  legal  matters,  and  that 
the  "sudden  plunge"  of  the  Court  into  the  slavery  con- 
troversy in  the  Dred  Scott  decision  was  due  "to  a  sort  of 
revolution  within  the  Court  itself."  Upon  constitu- 
tional questions,  he  found  a  "disconnected  attitude"  of 
the  Court  and  a  "lack  of  controlling  principles." 

During  the  fifties,  the  commercial  expansion  of  the 
country  absorbed  the  time  of  the  Court.  "Public  land 
cases  from  the  newer  States  and  Territories,  especially 
from  California;  admiralty  cases  from  sea,  lake,  and 
river;  and  interstate  cases  called"  on  the  Court  to  play 
its  part  in  a  "new  era  of  industrial  competition."  He 
believed  that,  "whenever  the  Court  was  obliged  to  face 
questions  involving  constitutional  construction,  the 
Jacksonian  Democracy  of  most  of  the  judges  prevented 
any  firm  and  consistent  policy."  The  "strong  rever- 
ence" for  States  rights  of  most  of  the  justices  led  them 
to  favor  the  States,  whenever  possible  without  a  direct 
reversal   of   Marshall,    in   Smith's   opinion.     He   finds, 

'^"Parties  and  Slavery,"  volume  18  of  Hart's  "American  Nation"  at 
p.  190.    "The  Supreme  Court  and  Slavery." 


448  ROGER  BROOKE  TANEY 

McLean,  Wayne  and  Curtis,  Federal  in  tendency,  though 
inconsistent.  Taney  "was  uncertain  in  his  attitude,  at 
times  maintaining,  with  vigor  a  position  identical  with 
Marshall's  and,  at  other  times,  adopting  the  full  States 
Rights  phraseology."  Nelson  of  New  York,  Catron  of 
Tennessee,  Grier  of  Pennsylvania,  Campbell  of  Alabama, 
and  Daniel  of  Virginia  were  always  on  the  side  of  States 
Rights.  Smith  bears  witness  to  the  opinion  in  the 
Genesee  Chief  as  being  worthy  of  Marshall  himself, 
"for  clearness,  force,  and  breadth." 

Clarkson  N.  Potter,  after  a  careful  count,  stated  that 
Taney  rendered  about  three  hundred  opinions  of  the 
Court  and  only  seven  dissenting  ones,  three  of  which 
were  in  admiralty  cases,  while  he  differed  from  the 
majority  in  twenty-six  cases  more,  where  either  no  dis- 
senting opinion  was  filed ;  or,  as  was  more  often  the  case, 
he  agreed  with  the  dissenting  opinion  of  another  justice. ^^ 

George  W.  Biddle,  one  of  the  most  discriminating  of 
Taney's  admirers,^^  considered  Taney  as  similar  to 
Marshall  in  his  "high  moral  attributes,  firmness  of 
intellectual  grasp,  simplicity  and  directness  of  purpose, 
and  equanimity  and  calmness  of  temperament."  When 
he  came  to  the  Bench,  the  "Strength  of  the  General 
Government  had  been  demonstrated."  While  Chief 
Justice,  he  showed  himself  as  "earnest,  active,  watch- 
ing with  untiring  industry"  over  the  Court's  "dehbera- 
tions,  dealing  promptly  and  successfully  with  the  vast 
and  varied  mass  of  litigation  which  came  before  him 
and  his  associates  and  disposing  of  it,  with  a  learning 
and  ability  that  gave  entire  satisfaction  to  the  body  of 

'^  4  Am.  Bar  Ass.  Reports,  p.  191.  A.  B.  Hagner  in  his  sketch  of  William 
Cranch,  in  3  Great  American  Lawyers  116,  speaks  of  the  reversal  of  three  of 
Taney's  decisions  on  Circuit  by  the  Supreme  Court,  viz.:  (1)  Gills  v.  Oliver, 
11  Howard  548,  (2)  12  Howard  111,  (3)   Williams  v.  Oliver,  17  Howard  258. 

38  Const.  Hist.  p.  123-125. 


ROGER  BROOKE  TANEY  449 

suitors,  and  to  the  people  at  large,  and  extorted  the 
admiration  of  many  of  his  old  political  opponents.  The 
judgments  delivered  by  him  as  the  organ  of  this  tribunal 
as  well  as  the  occasional  dissents  pronounced  by  him, 
have  with  rare  exceptions,  been  finally  received  as  cor- 
rect expositions  of  the  law."  These  judgments  are 
"distinguished  by  their  clearness,  directness,  and  firm 
grasp  of  the  subject  discussed,  and,  when  dealing 
with  constitutional  subjects,  for  sound  and  weighty 
reasoning.  "39 

He  laid  down  three  principles  which  he  believed  he 
he  found  in  Taney's  opinions.^ "^  (1)  He  adhered  closely 
to  the  language  of  the  Constitution,  construing  no  power 
to  exist  which  was  not  ''found  in  its  words  or  resulting 
therefrom  by  necessary  implication."  (2)  He  showed 
an  "anxious  desire  to  protect  the  several  States  in  the 
full  and  unfettered  exercise  of  the  powers  retained  by 
them."  (3)  Where  "room  was  found  for  a  broader 
interpretation"  of  the  Constitution,  "in  conformity  with 
the  needs  and  quality  of  right  of  all  the  States,  no  hesi- 
tation was  felt  in  overpassing  the  narrow  limits  within 
which  a  formal  construction  would  have  confined  the 
jurisdiction  of  the  Federal  Courts." 

After  all,  Taney's  constitutional  position  may  be 
summed  up'^^  by  saying  that  he  remained  to  the  end  a 
Southern  Federalist,  of  strong  prejudices,  who  found  it 

3*  I  can  not  find  any  evidence  in  these  judgments  for  Biddle's  further  claim 
that  they  showed  thorough  acquaintance  with  the  political  history  of  the 
Country. 

4«  Const.  Hist.,  pp.  195-197. 

^  Mikell,  Taney's  admirer,  4  Gt.  Am.  Lawyers  133,  writes  that  Taney  was 
"an  independent  thinker  upon  constitutional  questions.  After  the  counsel 
has  exhausted  his  arguments,  Taney  will  decide  with  him,  after  rejecting  his 
arguments,  on  reasons  worked  out  by  himself  and,  not  infrequently,  after  an 
exposition  of  the  fallacy  of  such  arguments  more  incisive  and  convincing  than 
that  furnished  by  the  opposing  counsel."    I  have  found  no  proof  of  this. 


X 


450  ROGER  BROOKE  TANEY 

very  difficult  to  change  his  mind.  Even  when  he 
thought  he  had  done  so  in  the  doctrine  of  Brown  v. 
Maryland,  he  retained  to  the  end  of  his  life  a  distrust  of 
too  great  widening  of  the  power  of  Congress  to  regulate 
commerce.  He  disliked  corporations  and  almost  all  of 
the  decisions  which  he  made,  which  have  been  called 
States  Rights  ones  were  based  upon  one  or  the  other 
of  those  grounds.^2 

\ ^--  '*2  Carson  "Supreme  Court,"  p.  295,  writes  that  Taney's  "manner  and  style 

are  described  as  impressive,  logical,  clear,  calm,  argumentative,  simple  and 
unostentatious,  addressed  to  the  reason  and  not  to  the  passions." 


CHAPTER  XIV 
Taney's  Career  as  Circuit  Court  Judge 

On  April  8,  1836,  six  days  after  Taney  had  taken  the 
oath  of  office  as  Chief  Justice,  the  term  of  the  Circuit 
Court  of  the  United  States  for  the  Distict  of  Maryland 
opened  in  Baltimore  with  Taney  presiding  upon  the 
bench.  It  was  customary  that  one  of  the  Justices  of 
the  Supreme  Court  should  sit  in  each  term  of  the  Circuit 
Court  which  was  held  within  a  certain  number  of  States 
which  had  been  allotted  to  him.  Taney  frequently  went 
to  hold  court  in  Virginia  and  Delaware.  In  Baltimore^ 
he  was  present  nearly  every  April  and  November,  at  the 
terms  of  Court,  though  occasionally,  the  length  of  the 
term  of  the  Supreme  Court^  kept  him  in  Washington  too 
long  to  permit  him  to  sit  in  the  April  term.^ 

Of  these  Sessions,  Tyler  writes: 

There  was  always  in  the  Court,  the  most  perfect  order.  As  a 
presiding  officer,  dignity  and  authority  sat  upon  his  brow.  His 
own  singular  courtesy  not  only  diffused  itseK  through  the  bar  and 
all  the  officers  of  the  Court,  but  it  was  contagious  among  the 
crowd.  No  officer  was  permitted  to  look  at  a  newspaper,  but  was 
required  to  be  intent  upon  the  proceedings  of  the  Court.  Every 
one  was  made  to  feel  that  he  was  where  solemn  duties  were  to  be 
performed. 

At  the  beginning  of  a  term,  when  the  list  of  jurors  was  called, 
he  attended  to  every  name. 

1  John  Quincy  Adams  (Memoirs  X,  346)  notes  that  he  attended  April 
term  of  Court  in  Baltimore  held  by  Judges  Taney  and  Heath.  On  Nov.  17, 
1846,  Taney  adjourned  court  on  account  of  the  death  of  Chancellor  Theod- 
orick  Bland  and  spoke  eloquently  of  his  great  learning,  ability  and  faithful 
service.    Later  Taney  presided  at  a  memorial  bar  meeting. 

2  As  in  1852. 

8  Taney,  Dec,  p.  362. 

451 


452  ROGER  BROOKE  TANEY 

When  he  heard  a  familiar  name  of  a  Frederick  County 
juror,  he  ''asked  the  marshal  to  tell  the  juror  to  come  to 
him  after  the  adjournment,  and,  if  he  then  found  the 
man  to  be  a  relative  of  an  old  acquaintance,  he  ''made 
the  kindest  inquiries  into  their  family  affairs." 

A  volume  of  opinions  delivered  by  Taney  in  the  Cir- 
cuit Court  at  Baltimore  was  prepared  by  his  son-in-law, 
James  Mason  Campbell,  Esq.,  and  was  published  in 
1871.^  Sixty-eight  cases  are  reported  in  this  volume: 
thirty-four  of  them  being  at  law,  seven  in  equity,  and 
twenty-seven  in  admiralty.  In  date,  they  range  from 
1836  to  the  famous  Merryman  decision  of  1861.^ 

The  charge  to  the  Grand  Jury  had  been  quite  a  fea- 
ture of  the  opening  of  the  terms  of  the  Circuit  Court  in 
Baltimore,  and,  when  Justice  Samuel  Chase  had  sat 
there,  he  had  taken  advantage  of  the  occasion  to  make 
political  speeches  under  guise  of  these  charges.  Taney 
resolved  to  end  the  practice  and  his  first  charge  on 

*  Campbell  died  before  publication  of  the  volume,  and  Frank  M.  Etting 
who  married  one  of  Campbell's  daughters,  copyrighted  it.  Mr. Bright- 
ley  of  the  Philadelphia  Bar  read  the  proof.  In  an  introductory  note,Taney's 
family  expressed  their  appreciation  of  these  services.  The  volume  is  entitled 
* 'Reports  of  Cases  at  Law  and  Equity  and  in  the  Admiralty  determined  in  the 
Circuit  Court  of  the  United  States  for  the  District  of  Maryland  by  Roger  B. 
Taney,"  and  contains  620  pages.  In  an  appendix,  are  printed  the  1836  Charge 
to  the  Grand  Jury  and  Taney's  Remarks  on  Lord  Bacon's  Maxims. 

^  The  first  270  pages  are  occupied  with  the  Law  Cases;  pages  271  to377are 
devoted  to  Equity  Decisions  and  pages  379  to  609  are  filled  with  Admiralty 
Cases.  Chronologically,  the  cases  are  dated  as  follows :  1836,  one  in  Admiralty; 
1837,  none;  1838,  two  at  Law  and  three  in  Admiralty;  1839,  none;  1840,  eight 
at  Law  and  three  in  Admiralty;  1841,  two  at  Law,  one  in  Equity  and  four  in 
Admiralty;  1842,  one  at  Law;  1843,  none;  1844,  two  in  Admiralty;  1845,  one  at 
Law,  one  in  Equity,  and  one  in  Admiralty;  1846,  one  at  Law  and  one  in  Equity; 
1847,  three  at  Law;  1848,  one  in  Equity;  1849,  two  at  Law;  1850,  one  at  Law 
and  one  in  Equity;  1851,  five  at  Law  and  four  in  Admiralty;  1852,  three  at  Law; 
1853,  one  at  Law,  one  in  Equity,  and  two  in  Admiralty;  1854,  one  at  Law, 
one  in  Equity,  and  one  in  Admiralty;  1855,  two  at  Law;  1856,  one  in  Admiralty; 
1857,  one  in  Admiralty;  1861,  one  at  Law  (the  Ex  parte  Merryman  Case). 


ROGER  BROOKE  TANEY  453 

April  8,  1836  was  also  his  last.^  He  told  the  jurors  that 
^'precise  and  detailed  instructions  were  no  longer 
needed;"  because,  "through  the  diffusion  of  education," 
jurors  had  a  general  knowledge  of  their  duties  and  the 
District  Attorney  would  give  them  help,  if  they  needed 
it.  He  hoped  that  few  infractions  of  the  law  would  be 
brought  before  them,  and,  therefore,  would  not  enlarge 
upon  crimes  against  the  United  States.  Continuing 
the  charge,  he  said  that:  "It  is  my  earnest  desire  that 
we  should  proceed  at  once,  with  industry  and  energy, 
to  execute  the  duties  for  which  we  are  assembled  and 
while  we  give  to  every  subject  brought  before  us  the  most 
ample  time  for  full  examination  and  elaborate  judge- 
ment, not  a  moment  should  be  wasted  in  unnecessary 
forms." 

He  urged  the  jurors  to  be  diligent  in  their  inquiries, 
and  careful  and  elaborate  in  their  conclusions,  showing 
no  sympathy  with  criminals,  who  offended  against  a 
"criminal  code  so  mild  and  forbearing  as  ours,"  and 
guarding  "the  innocent  from  injury."  "In  a  country 
like  ours,"  he  concluded,  "blessed  with  free  institutions, 
the  safety  of  the  community  depends  upon  the  vigilant 
and  firm  execution  of  the  law;  every  one  must  be  made 
to  understand,  and  constantly  to  feel,  that  its  supremacy 
will  be  steadily  enforced  by  the  constituted  tribunals, 
and  that  liberty  cannot  exist  under  a  feeble,  relaxed, 
or  indolent  administration  of  its  powder,  where  crime  goes 
unpunished  and  the  law  is  contemned." 

A  few  of  the  decisions  reported  involve  questions  of 
public  law.  The  very  first  case  in  the  volume^  was  one 
in  which  Taney  held  constitutional  the  provision  in  the 
Judiciary  Act  of  1789,  giving  the  United  States  District 

8  See  Niles  Reg.,  p.  120  for  April  16,  1836;  Tyler,  p.  270,  Taney's  Dec.  615. 
'  Gittings  V.  Crawford,  April  term,  1838;  Taney's  Dec.  1. 


454  ROGER  BROOKE  TANEY 

Courts  a  jurisdiction  over  consuls  in  civil  cases.  He 
considered  the  grant  by  the  Constitution  to  the  Supreme 
Court  of  jurisdiction  over  ambassadors  and  consuls, 
as  not  an  exclusive  one.  Consequently,  a  consul,  who 
did  not  possess  the  immunities  of  an  ambassador,  could 
be  made  liable  in  civil  suits  in  an  inferior  court. ^  At  first 
sight,  the  decision  seemed  to  conflict  with  expressions 
used  in  Marbury  versus  Madison.^  Taney's  views  as  to 
the  proper  attitude  of  the  Circuit  Court  toward  the 
Supreme  Court  are  thus  stated: — ■''  It  would  hardly  have 
been  proper  or  decorous  in  the  Circuit  Court  to  dis- 
regard" Marshall's  "opinions,  although  they  were 
expressed,  when  the  point  in  controversy  wasnot  directly 
before"  the  Supreme  Court,  but  that  the  later  case  of 
the  United  States  versus  Ortega  showed  that  the  Su- 
preme Court  considered  the  point  still  an  open  one.^^ 
Taney  continued  as  to  the  constitutionality  of  statutes 
thus:  "  Independent,  however,  of  any  judicial  authority, 
the  conclusions  of  my  own  mind  must  have  been  very 
clear  and  free  from  doubt,  before  I  should  have  felt 
myself  justified  in  pronouncing  an  act  of  Congress, 
passed  in  1789,  a  violation  of  the  Constitution.  It  was 
the  first  Congress  that  met  under  the  Constitution  and 
in  it  were  many  men  who  had  taken  a  prominent  and 
leading  part  in  framing  and  supporting  that  institution, 
and  who,  certainly,  well  understood  the  meaning  of  the 
words  they   used."     If  State   Courts    had    concurrent 

8  He  followed  U.  S.  v.  Ravara,  2  Dallas  297  (1793-1794)  and  U.  S.  v.  Ortega, 
11  Wheaton  467. 

5  Taney  maintained  that  Cohens  v.  Va. — 6  Wheaton  378  repudiated 
and  overruled  some  of  the  principles  put  forth  in  Marbury  v.  Madison — 
2  Cranch  137— and  that  Osbom  v.  U.  S.  Bank— 9  Wheaton  820— was  not 
pertinent,  because  it  concerned  a  question  of  the  relative  jurisdiction  of  the 
United  States  and  a  State. 

"Vide  also  Davis  v.  Packard  7  Peters  281. 


ROGER  BROOKE  TANEY  455 

jurisdiction  with  federal  courts  in  some  cases,  why 
should  the  grant  of  original  jurisdiction  to  the  Supreme 
Court  be  always  an  exclusive  one?^^ 

When  a  Malay,  born  in  Manila,  was  indicted  for 
murderi2  Taney  gave  an  interesting  decision,  holding  that 
the  Malays  were  not  white  men.  The  accused  man  was 
a  subject  of  Spain,  and  had  been  baptized.  He  was  one 
of  the  crew  of  the  American  brig,  Fannie,  and  killed  the 
Captain,  the  only  white  man  on  board,  on  October  31, 
1839,  while  the  ship  was  on  the  high  seas.  The  other 
members  of  the  crew  were  three  negroes  from  the  United 
States  and  a  mulatto  from  Nova  Scotia.  These,  by  the 
Maryland  statute  of  1717,^3  were  not  competent  to 
testify  against  a  white.  Christian,  person.  Taney 
stated  that  the  Provincial  Law  was  made  for  "political 
purposes,  and  grew  out  of  the  political  and  social  condi- 
tion of  the  Colonies.  The  colonists  were  all  of  the  white 
race,  and  all  professed  the  Christian  religion."  No 
others  were  expected  to  come  to  the  Province,  or  would 
have  been  recognized  as  equals  "by  the  colonists,  or 
deemed  worthy  of  participating  with  them  in  the 
privileges  of  this  community."  The  "only  civilized 
nations"  they  knew,  were  the  white  Europeans.  "The 
political  community  of  the  colony  was  composed  entirely 
of  white  men,  professing  the  Christian  religion."  "The 
white  race,"  continued  Taney,  "did  not  admit"  negroes 
or  Indians  "to  political  or  social  equality.     They  were 

"  Cohens  v.  Virginia  showed  that  the  construction  given  to  Marbury  v. 
Madison — that  an  original  jurisdiction  was  excluded,  where  an  appellate  one 
was  given  and  vice  versa,  could  not  be  sustained,  without  depriving  the  Court 
of  some  of  its  most  important  and  necessary  powers,  which,  though  classed  as 
original,  could  only  be  exercised  in  an  appellate  form,  when  the  question  arose 
in  a  suit  in  a  State  Court. 

12  U.  S.  v.  Dow,  April  term,  1840.    Taney's  Dec,  34. 

15  Not  by  the  Common  Law. 


456  ROGER  BROOKE  TANEY 

regarded  and  treated  as  inferiors,  of  whom  it  was  lawful,, 
under  circumstances,  to  make  slaves."  As  a  natural 
result,  feelings  were  ''created  that  would  make  it  dan- 
gerous" for  whites  to  receive  as  witnesses  against  them- 
selves the  "members  of  the  two  races  which"  had  been 
''thus  degraded."  A  Malay  was  regarded  in  Maryland 
as  one  of  a  race  which  might  be  enslaved. ^^  The  act  of 
1717  made  negroes  and  Indians  incapable  of  being  wit- 
nesses against  each  other  in  cases  which  might  affect  life 
or  member  from  a  different  reason,  viz.:  "the  barbarous 
and  brutish  ignorance  of  the  two  excluded  classes,  and 
their  crude  and  monstrous  superstitions,  which  rendered 
them  incapable  of  feeling,  or  appreciating  the  obligation  of 
an  oath,"  as  a  Christian  should.  In  process  of  time,  how- 
ever, the  Indians  disappeared,  and  the  negroes  became 
"instructed  in  the  doctrines  of  the  Christian  religion  and 
made  aware  of  the  sanctity  and  obligation  of  an  oath," 
so  that  the  law  of  1808  made  them  competent  witnesses 
in  all  cases,  except  against  white  men.  The  trial  re- 
sulted in  a  conviction  of  the  Malay.^^ 

A  less  important  case  grew  out  of  a  riot  in  Baltimore  on 
June  1,  1849.1^  The  mob  had  torn  down  the  buildings 
of  a  rope  walk,  and  the  jury  brought  in  a  verdict  for  the 
defendant.  In  his  charge,  Taney  held  that,  even  if  the 
"buildings  were  so  dilapidated  as  to  be  a  nuisance,  they 
could  not  be  abated  by  a  riotous  and  tumultuous  assem- 
blage." The  plaintiff  had  to  show,  in  order  to  recover 
damages,  that  the  mob  was  too  strong  to  be  resisted 

"  Vide  the  case  of  a  Madagascar  woman  in  3  H.  &  McH.  501. 

16  On  the  ground  that  "allegations  fatally  repugnant"  had  been  made  in  the 
indictment,  stating  that  the  crime  had  been  committed  "then  and  therein," 
which  was  interpreted  to  mean  in  the  District  of  Maryland  and  also  "out  of 
the  jurisdiction  of  any  State,"  a  new  trial  was  had,  followed  by  a  second  con- 
viction. 

16  Duily  V.  Baltimore,  November  term,  1852.    Taney's  Dec,  200. 


ROGER  BROOKE  TANEY  457 

without  the  aid  of  the  civil  authorities,  that  the  city 
authorities  had  reasonable  ground  for  believing  that  the 
mob  had  assembled,  or  would  do  so,  and  did  not  use 
reasonable  diligence  to  suppress  it,  and  that  the  damage 
had  not  occurred  through  a  sudden  excitement,  which 
was  not  apprehended  and  which  there  was  no  time  to 
prevent. 

In  a  case  in  which  the  compensation  of  a  federal  office- 
holder was  involved,  Taney  held  that  he  was  not  entitled 
to  more  than  his  salary,  but  that  he  might  charge  for 
acting  for  the  Federal  Government  in  a  different  capac- 
ity.i^  "There  is  no  law  which  prohibits  a  person  from 
holding  two  offices  at  the  same  time.  As  a  matter  of 
policy,  it  would  certainly  be  highly  exceptionable,  in 
most  cases,  as  a  permanent  arrangement;  but,  in  the 
absence  of  any  legal  provision  to  the  contrary,"  such 
a  plurality  was  valid  and,  as  a  temporary  expedient,  is 
often  no  more  expensive,  but  ''more  convenient  and 
useful  to  the  public,  than  to  bring  in  a  new  officer  to 
execute  the  duty.''^^ 

Several  cases  arose  under  the  tariff  laws.  A  charge  of 
a  specific  duty  on  salt  includes  the  sack  containing  it, 
on  which  no  additional  ad  valorem  duty  is  to  be  laid. 
Taney  would  not  infer  an  intention  to  lay  such  latter 
duty,  because  the  relative  value  of  the  sack  to  the  con- 
tents is  larger  than  that  which  the  vessel,  or  outside 
wrapper,  usually  bears  to  the  merchandise  imported  in 
it.  When  the  ''law  was  passed,  it  was  the  established 
course  of  trade  to  import  fine  salt  in  sacks,"  so  that 


17  U.  S.  V.  White.    Taney's  Dec,  152;  April  term,  1851. 

IS  No  allowance  was  made  for  hire  of  a  porter,  nor  for  services  as  pension 
agent  by  the  navy  agent  at  Baltimore,  but  allowance  given  for  serving  as 
acting  purser  to  the  naval  establishment  at  Annapolis  and  for  office  rent  to 
end  of  the  quarter. 


458  ROGER  BROOKE  TANEY 

there  was  no  unfair  evasion  of  the  law  in  this  mode  of 
importation.  1^ 

Hearthrugs,  of  worsted,  made  out  of  wool  by  combing, 
were  not  to  be  considered  manufactures  of  wool,  but  were 
** worsted  stuff  goods,"  or  non-enumerated  articles.^" 

The  value  of  blankets^i  and  the  importation  of  sugar 
from  the  West  Indies22  were  the  subjects  of  cases.  In 
the  latter  case,  Taney  held  that  ''the  principles  of  jus- 
tice would  seem  to  require  that  the  merchant  should  be 
charged  with  duty,  only  upon  the  merchandise  which 
he  actually  introduces  into  the  country.  He  imports 
nothing  more  and  brings  in  nothing  more  for  sale  or  con- 
sumption .  .  .  .  If  the  duty  is  charged  upon  what 
is  lost,  as  well  as  what  arrives,  he  will  pay,  in  almost 
every  case,  a  higher  duty  upon  his  importation  than  the 
law  intends  to  impose." 

Two  cases  were  concerned  with  attempts  to  recover 
duties  paid  under  protest  upon  pimento  imported  from 
Jamaica.  In  the  one,  Taney  held  invalid  the  collection 
of  a  greater  duty  than  allowed  by  the  merchant  ap- 
praisers.23  In  the  other,^*  Taney  held  that  the  suit  might 
be  brought  in  the  name  of  the  actual  owner,  as  well  as 
in  that  of  the  consignee,  but  that  the  protest  must  not 
object  in  general  terms  to  the  duty  charged,  without 
assigning  a  reason. ^^ 

Three  cases  were  concerned  with  vessels'  bonds.  The 
schooner,   Elvira,  sailed  from  Baltimore  to  Havana  in 

19  Karthaus  v.  Frick,  April  term,  1840.    Taney's  Dec,  94. 

20  The  time  of  payment  was  also  considered.  Riggs  v.  Frick.  Taney's 
Dec,  100;  April  term,  1840. 

21  Hoffman  v.  Williams,  November  term,  1842.    Taney's  Dec,  69. 

22  Brune  v.  Marriott,  April  term,  1849.    Taney's  Dec.  133. 

23  Tucker  v.  Kane,  November  term,  1850.    Taney's  Dec,  146. 

24  Mason  v.  Kane,  April  term,  1851.     Taney's  Dec,  173. 

25Bartlett  v.  Kane,  April  term,  1852.  Taney's  Dec,  186.  This  was  a 
suit  to  recover  duty  on  Peruvian  bark  paid  under  protest. 


ROGER  BROOKE  TANEY  459 

1839,  and  never  returned,  being  sold  there  and  the  crew 
discharged. 26  Taney  held  that  the  bond  given  by  the 
master,  under  the  law  of  1803,  for  the  return  of  the  crew 
to  the  United  States,  did  not  embrace  this  case.  The 
law  had  been  passed  to  protect  sailors  from  injustice  and 
despotism  of  the  captain,  and  to  preserve  them  for  the 
service  of  our  own  marine,  but  did  not  extend  to  a  case 
where  the  vessel  did  not  return.  However,  a  judgment 
was  given  for  failure  to  return  the  register^^  of  this 
vessel.  The  question  then  came  up  as  to  whom  did  the 
amount  recovered  belong,  and  Taney  held  that  it  was  not 
liquidated  damages,  as  the  United  States  suffered  no 
damages,  but  that  it  was  a  "specific  penalty  upon  the 
owner  and  master,  for  the  commission  of  a  particular 
offence  against  the  policy  of  the  law,"  imposed  "by 
reason  of  his  violation  of  a  duty  imposed  by  the  act  of 
Congress,"  and  consequently,  a  moiety  should  be  paid 
to  the  collector,  naval  officer,  and  surveyor  of  the  Port. 
The  schooner,  Catherine,  was  built  in  Baltimore  in 
1839,  and  was  also  taken  to  Havana  and  sold  there.^^ 
The  certificate  of  registry  was  likewise  not  returned. 
The  vessel  was  seized,  on  the  allegation  that  it  was  used 
in  the  slave  trade,  and  brought  to  New  York,  where 
the  court  dismissed  the  case.  The  allegation  was  made 
in  that  suit  that  the  owner  was  an  American  citizen  and 
the  defendant  tried  to  use  this  fact  before  Taney  to 
prove  that  the  vessel  had  not  been  sold  to  a  foreigner. 
Taney  said  that,  if  the  vessel  had  been  condemned,  the 
fact  that  the  owner  had  been  an  American,  would  have 
been  even  more  in  his  favor,  and  that  there  was  an 
obvious  fallacy  in  an  argument,  which  would  enable  the 

26  Montell  V.  U.  S.,  April  term,  1840.    Taney's  Dec,  24. 

27  U.  S.  V.  Montell.    April  term,  1841.    Taney's  Dec.  47. 

28  Allen  V.  U.  S.,  November  term,  1840.    Taney's  Dec,  112. 


460  ROGER  BROOKE  TANEY 

defendant  to  win,  whichever  way  the  sentence  of  the 
court  in  New  York  had  been  given.  In  fact,  the  ship 
had  been  acquitted,  because  it  had  not  been  used  in  the 
slave  trade,  and,  if  it  had  been  acquitted  on  the  ground 
that  it  was  an  American  vessel,  that  judgment  would 
have  been  conclusive  only  in  a  civil  suit,  and  not  in  a 
criminal  proceeding,  like  this  one. 

Two  negligence  cases  are  reported.  In  the  first  one, 
Stockton,  who  owned  a  coach  line  running  between 
Baltimore  and  Wheeling,  was  sued  by  Saltonstall,  who, 
with  his  wife,  had  been  passengers  on  one  of  the  coaches 
in  December,  1835.2  9  The  coach  upset  somewhere  be- 
tween Hancock  and  Cumberland,  and  from  the  accident 
Mrs.  Saltonstall  received  such  severe  injuries  as  to  render 
her  a  cripple  for  life.  Saltonstall  alleged  that  the  driver 
was  drunk  and  turned  the  horses  improperly,  so  that 
Saltonstall  opened  the  door  of  the  coach  and  jumped  out. 
His  wife  followed  him  and  the  coach  overturned,  falling 
upon  her.  The  defence  was  that  the  ground  was  icy, 
causing  the  horses  to  slip,  and  that,  if  Mr.  and  Mrs. 
Saltonstall  had  remained  within  the  coach,  they  would 
not  have  been  hurt.  Taney  held  that  the  owners  must 
show  that  proper  skill  and  care  were  employed,  and 
that  the  accident  happened  without  their  fault.  If  a 
passenger  is  injured,  the  presumption  is  that  negligence 
was  the  cause  and  the  disaster  is  a  prima  facie  evidence  of 
such  negligence.  The  owner  must  show  that  the  driver 
exercised  a  high  degree  of  caution  and  prudence,  and  the 
least  negligence  on  his  part,  which  produced  bodily 
injury  to  a  passenger,  would  make  the  owner  liable. 
The  injuries  were  not  caused  by  violation  of  contract, 
but  were  breaches  of  a  duty  imposed  by  law  upon  the 

"Saltonstall   v.   Stockton,   November   term,   1838.    Taney's   Dec,   11. 
Affirmed  by  Supreme  Court  in  13  Peters  181. 


ROGER  BROOKE  TANEY  461 

carrier.  If  the  misconduct  of  the  driver  placed  the 
plaintiffs  in  immediate  peril,  which  "was  brought  upon 
them  without  any  fault  of  want  of  care  on  their  side,"  it 
was  "impossible,  at  that  moment,  to  foresee  whether  it 
would  be  safer  to  remain  in  the  carrage  or  spring  from  it ; 
they  had  nothing  left  to  them  but  a  choice  of  perils,  and 
one  of  them  must  be  encountered."  The  defendant 
''must  be  responsible  for  the  consequences,  although  it 
may  turn  out  that  the  most  fortunate  alternative  was  not 
adopted."  If  the  driver  was  so  overcome  by  extreme 
cold,  that  he  could  not  manage  his  horses  and  perform 
his  duty,  the  plaintiff  cannot  recover,  and  if  there  was  the 
slightest  evidence  conducing  to  prove  this,  the  question 
must  be  left  to  the  jury,  for  the  "court  has  no  right  to 
suppose  that  the  jury  would  form  a  verdict  upon  slight 
and  insufficient  testimony,  or  without  any  testimony  to 
warrant  it." 

Some  years  later^^  an  action  was  brought  against  the 
City  of  Baltimore  to  recover  damages  for  injuries  sus- 
tained by  falling  into  Harford  Run,  where  it  crossed 
Canal  Street,  now  Central  Avenue.  Taney  held  that 
the  city  authorities  were  exclusive  judges  of  the  time, 
place,  and  manner  in  which  the  streets  should  be  opened, 
graded,  paved,  and  made  highways,  and  that  the  omis- 
sion of  the  city  to  grade  and  pave  the  street  on  which  the 
accident  occurred  and  to  place  a  rail  at  the  side  of  the 
Run,  or  to  cover  it,  was  not  such  negligence  as  would 
support  the  action. 

J.  V.  L.  McMahon  and  Thomas  S.  Alexander  were 
associated  as  counsel  in  the  case  of  Budd  v.  Brooke's 
Lessee. 2^  Some  years  later,  McMahon  spoke  with  great 
admiration  of  Taney's  part  in  this  case,  an  "intricate  and 

80  Hughes  V.  Baltimore.    April  term  1855.    Taney's  Dec.  243. 
8^  Tyler,  309.    The  case  is  unreported. 


462  ROGER  BROOKE  TANEY 

most  perplexing"  one  in  ejectment,  which  was  on  trial 
before  Judges  Taney  and  Heath  for  nearly  a  month. 
At  the  close  of  the  case,  which  was  hurried  to  enable 
Taney  to  attend  the  Supreme  Court,  it  was  expected  by 
all  parties  that  all  the  ''complicated  facts  and  the  diffi- 
cult questions  growing  out  of  them,  would  have  been 
fully  presented  to  the  Court  by  the  prayers  and  arguments 
of  the  counsel  on  both  sides."  But  to  the  great  surprise 
of  the  lawyers,  "without  a  prayer  or  argument  on  either 
side,"  Taney  delivered  an  opinion  which  "not  only 
showed  a  perfect  acquaintance  with  all  the  complicated 
facts  of  the  case,  but  it  also  referred  to,  and  covered 
all  the  numerous  questions  of  law  which  were  to  have 
been  presented  by  our  carefully  prepared  prayers." 

McMahon  was  "entirely  unprepared  for  the  display 
of  intellect  by  the  Chief  Justice,"  and  felt  that  "accus- 
tomed as  I  had  been  to  the  manifestations  of  his  forensic 
and  judicial  ability  on  many  previous  occasions, 
.     .     .     .     this  outstripped  them  all." 

At  the  November  term  of  1847,^2  ^  ca,se  of  an  alleged 
fraudulent  sale  was  tried.  A  Philadelphian  was  pro- 
prietor of  a  factory  at  Rockland,  which  was  managed  by 
his  brother  who  resided  there.  In  April,  1846,  the  busi- 
ness was  sold  to  one  Folwell,  who  resold  it  to  the  brother 
on  the  same  day  and  the  business  was  continued  by  him 
under  the  old  name.  In  August,  the  Philadelphian 's 
creditors  sued  out  a  writ  of  attachment,  and  seized  the 
machinery  and  goods,  claiming  that  the  sales  were  with- 
out consideration,  and  consequently  void.  The  resident 
brother  sued  the  creditors  for  the  value  of  the  property 
seized,  and  for  damages  for  breaking  up  his  business. 
Taney  said  that,  if  the  sales  were  fraudulent,  and  col- 
lusive, they  were  void ;  that  the  measure  of  the  damages 

»2  Comly  V.  Fisher.    Taney's  Dec.  121. 


ROGER  BROOKE  TANEY  463 

was  the  value  of  the  goods  seized,  plus  the  actual  dam- 
ages received  for  breaking  up  the  business ;  and  that  the 
sale  was  void,  unless  the  change  in  the  possession  had 
been  made  public. 

A  resident  of  Illinois^^  brought  an  action  for  damages 
for  false  imprisonment,  and  Taney  held  that  he  must 
show  not  only  want  of  probable  cause,  but  also  a  mali- 
cious intent  on  the  part  of  those  who  complained  against 
the  present  plaintiff.^^ 

Questions  of  contract  appear  in  several  of  the  reported 
cases.  Three  of  these  cases  concern  insurance.  The 
owner  of  the  brig  Victoria,  a  British  subject  living  at 
Nassau, 2^  sued  a  Baltimore  insurance  company,  which 
in  defence  alleged  the  unseaworthiness  of  the  ship  and  the 
negligence  of  the  master.  Taney  charged  the  jury  that 
the  vessel  must  have  been  seaworthy  when  insured,  to 
enable  the  owner  to  recover,  but  that  the  burden  of 
unseaworthiness  was  upon  the  defendant,  and  that,  if 
a  leak  found  at  Nassau  was  not  such  but  that  a  master 
of  competent  skill  and  judgment  might  have  reasonably 
supposed  that  the  ship  was  seaworthy,  then  an  omission 
to  repair  the  vessel  at  Nassau  constituted  no  bar  to 
recovery  of  insurance. 

The  Barque,  Margaret  Huggs,  sailed  from  Baltimore 
to  Rio  de  Janeiro  and  thence  to  Montevideo,  where  she 
loaded  a  cargo  of  beef.^^  A  storm  drove  the  barque 
into  Nassau,  and  caused  most  of  the  cargo  to  be  spoiled 

83  Burnap  v.  Albert,  April  term,  1855.    Taney's  Dec,  244. 

34  Lane  v.  Beltzhoover,  November  term,  1840.  Taney's  Dec,  110.  Taney 
held  that  ^.  fieri  facias  in  the  names  of  two  plaintiffs,  after  one  of  them  is  dead, 
is  irregular  and  defective,  but  may  be  amended. 

3^  Adderly  v.  Am.  Mutual  Ins.  Co.,  November  term,  1847.  Taney's  Dec, 
126.    The  jury  found  a  verdict  for  the  defendant. 

36Hugg  V.  Augusta  Ins.  &  Banking  Co.,  April  term,  1851.  Taney's  Dec, 
159, 


464  ROGER  BROOKE  TANEY 

or  thrown  overboard.  The  Court  in  the  Bahamas 
decreed  $2,100  as  salvage,  and  the  cargo  was  sold  for 
about  $2,700.  The  case  went  to  the  United  States 
Supreme  Court^^  and  was  remanded  for  a  second  trial, 
which  resulted  in  a  verdict  for  the  plaintiffs.  In  that 
trial,  Taney  charged  the  jury  that  the  plaintiff  could 
recover  for  a  total  loss  of  freight,  only  if  the  ship  could 
not  have  been  repaired  within  a  reasonable  time,  and  at 
a  reasonable  expense  and,  if  the  expense  of  completing 
the  voyage  and  delivery  of  the  remainder  of  the  cargo 
would  have  exceeded  the  amount  of  freight  that  would 
have  been  carried.^^  Insurance  on  goods^^  may  not  be 
recovered,  if  the  plaintiff,  designedly  or  with  fraudulent 
intent,  withheld  from  the  defendant  information  needed, 
nor  if  he  made  a  false  oath ;  but  loss  of  papers,  or  acci- 
dent, does  not  bar  him  from  recovery. 

When  a  banknote  was  taken  in  the  usual  course  of 
business,  bona  fide  and  under  circumstances  which  would 
not  have  excited  the  suspicion  of  a  person  of  ordinary 
prudence  and  care  in  business  that  the  note  was  lost  or 
stolen,  the  fact  that  such  had  been  the  case  is  no  valid 
defence.'^^ 

The  Maryland  Constitution  of  1851  forbade  usurious 
contracts,  and  the  law  of  the  State  was  that  such  a  con- 
tract was  entirely  void  and  unenforceable.  In  a  case 
where  a  defence  of  usury  was  urged,  Taney  held^^  that 
there  can  be  no  civil  right,  where  there  is  no  legal  remedy 

"  7  Howard  595. 

'8  He  held  that  in  Maryland  the  allowance  of  interest  was  a  question  for 
the  jury. 

'^Betts  V.  Franklin  Ins.  Co.  of  Philadelphia,  November  term,  1851. 
Taney's  Dec,  171.    Verdict  for  plaintiff. 

^°  City  Bank  of  Columbia  v.  Farmer's  and  Planter's  Bank  of  Baltimore, 
November  term,  1847.    Taney's  Dec,  119. 

*i  Dill  V.  Ellicott,  November  term,  1854.    Taney's  Dec,  233. 


ROGER  BROOKE  TANEY  465 

nor  can  there  be  a  legal  remedy  for  an  illegal  act.  This 
incapacity  to  maintain  an  action  on  such  a  contract  is 
no  forfeiture,  nor  penalty;  for  there  is  nothing  to  for- 
feit where  no  right  of  action  has  been  acquired.  He 
referred  to  the  Constitution,  "containing  the  funda- 
mental law  of  the  State,"  as  "an  instrument  solemn  and 
dehberate." 

No  action  was  permitted  by  Taney  to  lie  on  a  contract 
to  pay  for  services  rendered  in  procuring  from  the  legis- 
lature of  Virginia  a  right  of  way  for  the  Baltimore  and 
Ohio  Railroad  through  that  State, ''^  ^s  it  was  against  the 
policy  of  the  law  to  pay  for  a  man's  services  as  a  "lobby- 
man,"  especially  if  the  contract  was  secret  and  the  legis- 
lature knew  nothing  of  it.  In  any  case,  the  law  passed 
by  the  Virginia  legislature  was  materially  different  from 
that  which  the  railroad  proposed  to  the  plaintiff,  and  the 
passage  of  that  particular  law  was  a  condition  precedent 
to  the  payment. 

A  contract  was  made  between  two  Baltimoreans  for 
the  sale  of  a  house  upon  Mt.  Vernon  Place.  The  con- 
tract was  repudiated  by  the  purchaser,  and  the  owner 
sold  the  house  for  a  lower  price  and  then  sued  the  other 
party  to  the  contract  for  damages  for  breaking  it.  Taney 
refused  to  allow  any  recovery,  because,  when  the  suit 
was  brought,  no  stipulation  in  the  contract  had  yet 
been  broken^^  and  the  plaintiff,  consequently,  had  no 
legal  demand  upon  which  action  could  then  be  brought. 

Some  Liverpool  merchants  had  consigned  to  them  at 
Swansea,  Wales,  a  cargo  of  copper  from  Chile,  shipped 

42  Marshall  v.  B.  &  O.  R.  R.,  November  term,  1852.    Taney's  Dec,  204. 

^  That  is,  the  first  payment  was  to  be  made  in  18  months,  and  that  term 
had  not  yet  expired.  Green  way  v.  Gaither,  November  term,  1851.  At 
November  term,  1853,  in  same  case,  Taney  would  not  sign  a  bill  of  exceptions, 
presented  two  years  after  trial,  being  not  satisfied  that  there  had  been  error  in 
instructions  to  the  jury.    Taney's  Dec,  227. 


466  ROGER  BROOKE  TANEY 

in  the  brig  Hope.^^  The  owners  of  the  brig  resided  in 
Baltimore  and  sent  her  to  Montevideo  with  a  cargo  of 
lumber,  and  thence  to  Valparaiso  for  copper.  There  the 
signer  of  the  charter  party  refused  to  load  the  brig, 
saying  that  she  was  too  old;  but  the  master  secured  a 
cargo  from  another  source.  On  the  return  voyage, 
severe  weather  was  met  off  Cape  Horn,  and  the  brig 
made  Pernambuco  in  great  distress  and  unable  to  proceed 
further.  The  cargo  was  landed,  and  extensive  repairs 
were  made,  for  which  ship  and  cargo  were  hypothecated. 
The  brig  then  sailed  to  Swansea,  and,  upon  her  arrival 
there,  an  admiralty  court  gave  a  decision  against  the 
ship  and  cargo  to  pay  for  these  repairs,  and  the  pro- 
ceeds of  the  sale  did  not  pay  the  entire  bill.  The  con- 
signers then  brought  suit  in  the  United  States  Court  at 
Baltimore  against  the  owners  to  recover  the  net  pro- 
ceeds of  the  cargo,  after  deducting  the  sum  received  from 
the  underwriters  and  the  freight.  The  ship  was  not 
insured,  so  that  the  owners  had  made  a  total  loss. 
Taney  stated  the  questions  in  the  case  as:  (1)  are  the 
owners  of  the  ship  personally  responsible  to  the  owners 
of  the  cargo?  and  (2)  by  what  rules  of  law  are  the  rights 
of  the  plaintiffs  and  the  liabilities  of  the  defendants  under 
the  contract  to  be  measured?  The  plaintiffs  answered 
the  latter  question,  by  those  of  the  Common  Law. 
Taney  replied  that  he  saw  no  sound  reason  for  applying 
to  this  case  the  principles  of  the  Common  Law  as  to 
Common  Carriers  for  hire,  and  that  the  master  had  not 
by  the  Common  Law,  authority  to  make  a  contract  for 
a  cargo.  When  the  refusal  to  execute  the  contract 
occurred  at  Valparaiso,  the  master,  under  the  Common 
Law,  should  have  notified  the  consignees  of  that  fact, 
and  awaited  their  orders.     The  principles  of  the  Com- 

**  Naylor  v.  Baltzell,  November  term,  1841.    Taney's  Dec,  55. 


ROGER  BROOKE  TANEY  467 

mon  Law  do  not  prevail  in  Chile,  and  the  contract  was 
neither  made  in  Maryland  nor  to  be  performed  there. 
The  master  had,  however,  by  the  maritime  law,  the 
right  to  make  a  contract,  by  which  the  ship  and  her 
freight  were  bound.  He  might  pledge  that  value,  but 
no  more.  Otherwise  the  ship  owner  would  have  to 
hazard  his  whole  fortune  upon  every  distant  voyage  of 
his  vessel.  It  can  never  be  for  the  interest  of  the  owner 
to  put  repairs  on  a  vessel  greater  than  its  value,  though 
it  may  be  for  the  interest  of  the  cargo.  Further,  the 
plaintiffs  stood  by  and  saw  the  cargo  sold  in  the 
admiralty  court,  without  appearing  to  defend  it,  or  to 
require  from  the  lender  any  proof  of  the  necessity  of  the 
repairs.  For  all  these  reasons,  Taney  allowed  them 
no  recovery. 

To  remove  the  bar  of  the  statute  of  limitations,'^* 
Taney  held  there  must  have  been  an  express  promise  to 
pay,  or  an  admission  of  the  debt,  in  such  terms  as  to 
imply  that  the  debtor  is  willing  to  pay  it.  When  a 
person  files  a  list  of  debts  under  the  insolvent  law,  there 
is  no  such  admission  of  indebtedness  as  implies  that  he 
is  willing  to  pay  them  all  to  their  full  extent,  but  rather 
that  he  wishes  to  be  discharged  without  paying  them  in 
full. 

When  an  executor  gave  bond  to  his  surety  to  pay  him 
half  of  his  commissions,  in  consideration  of  his  consenting 
to  act  as  surety,  he  executed  a  valid  instrument.^^  In 
an  action  on  such  a  bond,  a  premium  paid  a  new  surety, 
required  by  the  Orphans  Court,  is  not  to  be  allowed  as 
a  set  off.  An  agreement  between  the  executor  and 
surety  to  waive  commissions  during   the    life   of   the 

«  Ga.  Ins.  &  Trust  Co.  v.  Ellicott,  November  term,  1849.  Taney's  Dec, 
130. 

«  Culbertson  v.  Stallinger,  April  term,  1840.    Taney's  Dec,  75. 


468  ROGER  BROOKE  TANEY 

testator's  widow,  is  not  a  condition  annexed  to  the  bond, 
and,  not  being  under  seal,  cannot  operate  as  a  release 
or  defeasance.  Such  an  agreement  would  be  enforced 
in  a  court  of  equity,  but  not  at  law.  Equity  would  also 
consider  whether  the  insolvency  of  the  first  surety  and 
the  requirements  of  an  additional  surety  permitted  the 
insolvent  to  continue  entitled  to  any  share  of  the  com- 
missions which  accrued,  after  his  name  had  ceased  to  be 
available  as  surety.  The  executor  had  a  right  to  em- 
ploy counsel  and  to  pay  him  reasonable  fees  and  set  them 
off  against  the  surety's  share  of  the  commissions. 

A  man  was  appointed,  by  the  captain  of  a  naval 
vessel,  as  acting  purser  and  died  without  confirmation 
of  his  appointment.  His  administrator  sued  the  United 
States  for  commissions.^^  The  allowance  was  not  given 
by  act  of  Congress,  but  by  the  Naval  Regulations.  As 
the  plaintiff's  salary  was  fixed  by  the  act  of  1814,  Taney 
refused  to  allow  the  commissions,  saying  that  the  regula- 
tions could  not  increase  the  renumeration  fixed  by  law. 
The  Navy  Department's  construction  of  a  law  should 
be  given  respect,  but  "cannot  be  allowed  to  alter  the 
law,  nor  to  control  its  construction  in  a  Court  of  Justice." 
''This  usage, "^^  Taney  added,  "is  not  to  expound  but  to 
repeal  the  Act  of  Congress." 

One  copyright  case^^  reported  for  the  infringement  of 
the  copyright  of  the  song  entitled:  "The  Old  Arm 
Chair."  To  enable  the  jury  to  determine  whether  the 
tunes  were  similar  or  not,  Taney  permitted  Mr.  John 
Cole,  an  old  professional  singer,  to  sing  them  both  in 
Court,  and,  as  a  bystander  remembered  the  scene,  "the 

47  Goldsborough  v.  U.  S.,  April  term,  1840.    Taney's  Dec,  80. 

*^  The  District  Court  should  have  allowed  nothing,  but  granted  the  adminis- 
trator one  per  centum  and,  as  the  United  States  had  acquiesced  in  the  decree, 
Taney  did  not  disturb  it. 

«  Reed  v.  Carusi,  November  term,  1845.    Taney's  Dec,  72.    Tvkr,  p.  312. 


ROGER  BROOKE  TANEY  469 

Chief  Justice,  with  that  power  pecuHarly  his  own,  of 
restraining  almost  by  a  glance,  the  slightest  breach  of 
decorum  in  his  Court,  overawed  and  repressed  every 
demonstration  of  disrespect  by  the  placid  and  dignified 
attention  which  he  bestowed  throughout  upon  Mr. 
Cole's  musical  efforts." 

Two  patent  cases  at  law  and  two  in  equity,  are  found^*^ 
An  interesting  equity  suit  was  tried  at  the  April  Term  of 
1841.^1  An  American  citizen,  domiciled  in  Buenos 
Ayres,  shipped  a  cargo  to  Gibraltar  on  an  American 
schooner,  commanded  by  an  American.  The  papers 
concerning  the  cargo  were  made  out  in  the  name  of  the 
master,  to  protect  it  from  Brazilian  cruisers,  as  Buenos 
Ayres  and  Brazil  were  at  war.  The  vessel  was  captured 
and  lost,  together  with  its  cargo.  The  master  then 
prosecuted  a  claim  for  the  cargo,  as  his  own,  against 
Brazil,  and  agreed  with  the  owner  to  pay  over  the 
amount  secured  after  deducting  the  charges.  Before 
the  decision  was  made  in  Brazil,  the  master  died,  and 
Neale,  a  Baltimorean,  who  took  out  letters  of  adminis- 
tration upon  his  estate,  successfully  prosecuted  the  claim. 
The  amount  received  was  brought  into  court  as  the 
master's  assets.  Duffy,  the  owner,  then  sued  Neale  for 
the  money.     Neale  died  before  the  trial,  and  the  jury 

^°  In  law:  Knight  v.  B.  &  O.  R.  R.,  November  term,  1840.  Taney's  Dec, 
106.  A  judgment  of  $5,000  was  recovered  for  infringement  of  a  patent  for  end 
bearings,  and  Larabee  v.  Colton,  April  term  1851.  Taney's  Decisions  180, 
infringement  of  a  patent  shower  bath. 

In  equity:  Wilson  v.  Turner,  April  term,  1845.  Taney's  Dec,  278,  con- 
cerning an  assignment  for  the  time  of  the  renewal  of  the  patent  for  Wood- 
worth's  planing  machine  (a  decision  affirmed  in  4  How.  712) — and  Crosby  vs. 
Lapouraille,  November  term,  1854.  Taney's  Dec,  374,  in  which  Taney  held 
that  a  combination  in  machinery  is  patentable,  if  the  combination  is  new, 
although  the  elements  are  old,  provided  the  combination  is  invented  by  the 
patentee  and  is  not  a  mere  effort  of  ordinary  mechanical  skill. 

"  Duffy  V.  Neale's  Administrator.    Taney's  Dec,  271. 


470  ROGER  BROOKE  TANEY 

gave  a  verdict  against  his  estate.  There  were  no  assets, 
and  Duffy  tried  to  get  funds  from  Neale's  administrator. 
Taney  held  that  the  original  right  merged  in  the  judgment 
obtained  at  law,  and  that,  therefore,  Duffy  could  not 
charge  Neale's  administrator. 

In  a  later  suit  concerning  the  estate, ^^  Qf  ^  Charles 
County  man,  who  had  left  a  bequest  of  $1000  for  the 
endowment  of  ''the  Society  for  the  education  of  pious 
young  men  for  the  ministry  of  the  Protestant  Episcopal 
Church,"  Taney  held  the  bequest  was  invalid,  because 
of  a  decision  in  Maryland  courts  against  the  validity^^ 
of  such  bequests  to  unincorporated  and  voluntary  asso- 
ciations of  individuals.  The  famous  Girard  will  case  was 
not  to  be  considered  as  a  precedent  on  the  other  side,  for 
its  decision  was  founded  on  the  common  law  uf  Pennsyl- 
vania, and  the  Circuit  Court  of  the  United  States  must 
administer  the  law  of  the  state  in  which  it  sits,  and  muS't 
reaffirm  the  decisions  of  the  highest  judicial  tribunals  of 
that  State.  In  Equity,  a  Federal  Court  is  governed  by 
English  Chancery  law  as  to  the  remedy  and  as  to  its 
form;  but  not  as  to  the  right  of  the  complainant.^^ 

Taney  had  occasion  to  consider  the  laws  against  usury 
and  gambling  in  the  case  of  Thomas  vs.  Watson^^  and 
held  that^^  "while  the  laws  against  usury  are  intended 
to  protect  the  necessitous  against  the  oppression  of  the 
money  lender,  and  against  hard  and  ruinous  contracts, 
forced  upon  them  by  their  w^ants,  the  laws  against 
gaming  are  founded  upon  a  policy  equally  sound  and 
clear,  and  are  intended  to  discountenance  a  vice  in- 

"  Meade  v.  Beale,  November  term,  1850.    Taney's  Dec,  339. 
"  Dashiell  v.  Atty.-Gen.,  5  Harris  &  Johnson,  392. 

"  A  very  able  brief  by  Henry  Winter  Davis  in  behalf  of  Bishop  Meade,  is 
printed,  together  with  Taney's  Decision. 
^  April  term,  1846.    Taney's  Dec,  297. 
"  Page  305. 


ROGER  BROOKE  TANEY  471 

jurious  to  society  and  often  most  ruinous  to  the  indi- 
vidual." A  man  had  confessed  judgment  on  two  promis- 
sory notes,  one  on  an  usurious  and  one  on  a  gambhng 
consideration.  Then  he  became  insolvent,  and  his  trustee, 
filing  a  bill  in  equity  for  relief  from  an  execution  upon  the 
judgment,  called  the  creditor  to  state  the  true  considera- 
tion of  the  notes.  On  a  demurrer,  Taney  held  that,  as  the 
defendant  had  not  objected  to  answer,  on  the  ground  that 
he  would  thereby  be  subject  to  penalty  of  forfeiture, 
he  could  not  avail  himself  of  this  defence,  nor  would  it 
have  been  a  valid  defence  in  any  case;  since,  merely 
making  an  usurious  contract  did  not  subject  the 
lender  to  a  forfeiture,  and  he  was  not  asked  to  state  the 
circumstances  under  which  the  money  was  won  on 
the  gaming  debt,  but  inquiry  was  merely  as  to  whether 
the  consideration  was  a  gaming  debt.  There  were 
many  ways  in  which  he  might  have  won  the  money, 
without  subjecting  himself  to  a  penalty.  An  affirmative 
answer  would  undoubtedly  prevent  him  from  recovering 
the  money,  but  that  loss  was  not  a  penalty,  or  forfeiture, 
within  the  meaning  of  the  law.  The  principle  on  which 
a  court  will  grant  relief  after  the  voluntary  payment  of 
money  must  also  entitle  one  to  relief  after  a  voluntary 
confession  of  judgment,  and  an  omission  by  the  debtor 
to  defend  himself  is  no  bar  to  the  relief  asked  by  the 
trustee,  for  these  questions  were  not  decided  in  the  suit 
at  law.^^ 

In  the  case  of  Lowry  vs.  Commercial  and  Farmer's 
Bank  of  Baltimore^^  Taney  properly  held  the  bank  liable 
for  negligence,  in  not  preventing  a  fraudulent  transfer 

^^  The  IMaryland  Law  of  1845  was  too  late  to  be  appealed  to,  in  its  abro- 
gation of  the  penalties  of  the  law  of  1704  as  to  usury  and  permission  to  the 
lender  to  recover  the  sum  loaned  with  legal  interest. 

68  April  term,  1848.    Taney's  Dec,  310. 


472  ROGER  BROOKE  TANEY 

of  its  Stock.  In  Wartman  vs.  Wartman^^  he  considered 
an  application  to  discharge  a  man  from  an  attachment 
for  contempt  of  court.  The  defendant's  father  had 
devised  him  money  in  trust  for  another  son  and  his 
children.  This  brother's  only  child  brought  suit  for  the 
money  and  the  defendant  denied  the  parenthood  of  the 
child  and,  while  the  suit  was  pending,  distributed  the 
fund,  so  as  "to  evade  and  defeat  any  order  the  court 
might  make  for  the  security  of  the  fund."  He  had 
failed  to  bring  the  money  into  court  and  Taney  refused 
to  permit  him  to  be  heard,  till  he  purged  himself  from 
contempt.  An  attachment  had  been  issued,  and  the 
defendant  was  in  jail.  He  pleaded  that  he  had  no  notice. 
Taney  denied  this,  and  said  that  contempt  does  not 
depend  upon  one's  intent,  but  upon  the  act  done.  From 
his  conduct,  the  conclusion  was  irresistible  that  he  acted 
so  as  to  show  contempt  for  the  court  and  defraud  the 
complainant  of  any  possible  right  the  court's  decision 
might  give  him.  By  filing  a  schedule  of  his  property 
with  a  trustee,  showing  that  he  had  not  the  ability  to 
pay  the  sum,  or  by  paying  the  money  into  court,  he 
might  be  released,  but  upon  no  other  condition. 

Baltimore  was  a  great  commercial  emporium,  and  the 
United  States  Courts  had  an  exclusive  admiralty  juris- 
diction, so  that  we  are  not  surprised  to  find  a  number  of 
opinions  upon  important  Admiralty  Decisions.  Two 
suits  arose  out  of  ship  building.^^  In  one  of  these  suits, 
Culley  had  contracted  with  the  Federal  Government  to 
build  the  brig  Lawrence  for  the  Navy,  and  Donohue  was 
a  sub-contractor,  who  did  extra  work,  by  direction  of  the 
government  inspector.  To  charge  Culley  for  this  work, 
Donohue  |must  show,  Taney   decided,    not   only  that 

^9  April  term,  1853.    Taney's  Dec,  363. 

60  Donohue  v.  Culley,  April  term,  1844.    Taney's  Dec,  468. 


ROGER  BROOKE  TANEY  473 

the  work  was  not  embraced  in  the  original  specifi- 
cations given  him  by  Culley,  but  also  that  it  was 
embraced  in  the  specifications  given  Culley  by  the  Naval 
Department. 

The  other  case  was  a  libel  to  recover  for  labor  and 
materials  furnished  the  ship  Scotia,^^  Leslie  had  en- 
gaged Smith  to  build  the  vessel.  He  was  a  vessel- 
builder,  but  had  never  built  a  full  rigged  ship  before, 
and  agreed  to  build  it  below  the  usual  price,  not  expect- 
ing to  make  any  money,  but  hoping  to  save  himself  and 
to  obtain  the  reputation  of  a  first  rate  ship-builder. 
Leslie  promised,  verbally,  to  pay  half  a  dollar  a  ton 
more  than  the  contract  price,  if  the  ship  were  well  built. 
Smith  had  two  sureties,  one  of  whom  was  named  Glass. 
The  other  one  acted  at  Leslie's  request  that  he  exercise 
his  influence  on  Smith  to  urge  him  on  (under  an  express 
agreement  that  he  should  not  be  held  liable).  After  the 
contract  was  signed,  Leslie  changed  the  plan  of  the  ship 
with  Smith's  consent,  but  without  consulting  the  sure- 
ties, thereby  making  the  construction  more  expensive. 
Leslie's  confidence  in  Smith  was  soon  shaken,  and,  on 
the  very  day  on  which  the  keel  was  laid,  when  Smith 
called  on  him  for  $1000,  he  took  a  receipt  and  an  assign- 
ment of  all  rights  to  the  ship,  which  assignment  was  kept 
secret  until  Smith  stopped  payment.  The  ship  was 
launched  on  January  1,  and  about  that  time  one  of 
Smith's  notes  fell  due.  Leslie  refused  to  make  further 
advances,  and  Smith  became  insolvent  and  could  not 
go  on  with  the  work.  Those  who  worked  on  the  ship, 
or  furnished  materials  for  her,  applied  to  Leslie,  who 
repeatedly  said  that  all  just  bills  would  be  paid.  Glass 
had  been  employed  by  Smith  to  do  outside  joiner's 
work,  and,   in  January,   certain   bills  receivable   were 

"  Leslie  v.  Glass,  April  term,  1840.    Taney's  Dec,  422. 


474  ROGER  BROOKE  TANEY 

transferred  by  Smith  to  him.  Since  the  completion  of 
the  vessel,  Leslie  had  refused  to  pay  Glass  and  others, 
on  the  ground  that  they  gave  Smith  credit. 

Taney  held  the  scales  of  justice  even,  and  said  that, 
in  general,  the  person  for  whom  the  vessel  is  built  is  not 
liable  for  debts  contracted  by  a  shipwright,  and,  when 
he  pays  the  money  due  according  to  the  contract,  he  is 
entitled  to  a  delivery  of  the  vessel,  free,  and  discharged 
from  any  claim.  Ordinarily,  also,  general  declarations 
made  by  the  person  for  whom  the  vessel  is  built,  after 
the  work  has  been  done  or  the  materials  furnished,  that 
he  will  pay  therefor,  will  not  bind  him,  even  if  the  vessel 
is  worth  more  than  the  contract  and  the  shipwright  is  in- 
solvent, for  the  promises  are  without  consideration,  and, 
consequently,  cannot  be  enforced.  In  this  case,  how- 
ever, if  the  assignment  had  become  known  to  the  work- 
men, they  would  have  lost  confidence  in  Smith,  and  the 
assignment  was  kept  secret  to  preserve  his  credit  and 
enable  him  to  go  on  with  the  ship.  Smith  gained  a 
false  credit,  and,  if  Leslie  intended  thereby  to  obtain, 
on  Smith's  credit,  labor  and  materials  necessary  to 
build  the  ship,  without  becoming  personally  respon- 
sible, the  design  was  one  which  a  court  of  justice  cannot 
sanction.  It  was  hardly  just  to  Leslie  to  decide  the 
matter  thus,  however,  for  when  he  took  the  assignment, 
he  supposed  it  would  be  for  the  advantage  of  both  of 
them  to  sustain  Smith's  credit,  by  concealing  the  assign- 
ment, and  that  Smith  would  make  a  profit  from  building 
the  ship.  The  ship  had  hardly  been  finished,  when  the 
libel  was  filed  and  Taney  was  persuaded  that  the  pres- 
ent defence  was  "owing  more  to  irritation  caused  by 
these  circumstances  than  to  any  deliberate  design  to 
break  the  promises  he  had  made,  or  to  be  unjust  to  the 
creditors."     After    the    assignment,    the    ship    became 


ROGER  BROOKE  TANEY  475 

Leslie's  property  and  so  his  promises  were  not  without 
consideration,  and  he  must  pay  the  bills. ^^ 

A  number  of  cases  were  concerned  with  repairs  made 
to  vessels.  They  illustrate  the  trade  of  the  times. 
Taney  rebuked  a  fraudulent  transfer  of  a  schooner  in 
Port  au  Prince,  which  was  intended  to  cheat  one  who  had 
advanced  on  it  money  for  repairs.®^  He  decided  that  a 
claim  for  copper  furnished  a  vessel  sailing  from  New 
York  to  Rio  de  Janeiro  w^as  not  proven,  when  the  debt 
was  secured  by  a  note  of  the  consignees  of  the  brig.^^ 

In  a  third  case,  in  which  a  vessel  formerly  owned  by 
a  Baltimorean  had  been  sold  to  residents  of  New  York, 
the  decision  was  that  the  burden  of  proof  lay  upon  the 
new  owners,  to  show  that  the  repairs,  which  were  made 
after  the  sale,  were  not  done  upon  the  credit  of  the  mas- 
ter, in  which  case  there  would  be  no  lien  upon  the  brig.*^^ 

The  schooner  Light  was  owned  by  two  persons,  but 
was  registered  in  the  name  of  one  of  them  only,  and  the 
libellants,  ship-carpenters,  who  did  work  on  the  vessel, 
had  no  knowledge  of  the  other's  interest,  he  yet  was  held 
liable  also  for  the  debt  to  them.^^ 

The  schooner  El  Cahallero  sailed  from  Savannah  to 
Havana  with  a  cargo  of  rice.  A  bill  for  repairs  on  the 
vessel  was  drawn  upon  the  owner  in  Baltimore. ^^  The 
consignee  at  Havana  gave  the  master  an  advance  of 
money  to  take  up  the  bill  which  had  been  protested  and 

®2  As  Leslie  had  suffered  some  hardship,  in  paying  for  the  ship  more  than 
for  other  similar  vessels,  and  Glass  had  suffered  accounts  to  accumulate  with- 
out asking  Leslie  about  them,  no  costs  were  allowed. 

63  Herwig  v.  Oakley,  April  term,  1838.    Taney's  Dec,  389. 

"  Phelps,  Dodge  and  Co.  v.  Brig  Camilla,  April  term,  1838.  Taney's  Dec, 
400. 

^  Jones  V.  Brig  Ratler,  November  term,  1841 .    Taney's  Dec,  456. 

s^Leef  V.  Gardiner,  November  term,  1841.    Taney's  Dec,  461. 

"  Thomas  v.  Gittings,  April  term,  1844.    Taney's  Dec,  472. 


476  ROGER  BROOKE  TANEY 

paid  other  bills,  taking  a  bottomry  bond  on  the  vessel 
from  the  master.  When  an  action  was  brought  by  Git- 
tings,  the  consignee,  the  District  Court  decided  for  him 
and,  on  appeal,  Taney  decided  that  a  bottomry  bond  was 
allowable  in  this  case,  in  the  interest  of  both  owner  and 
master. 

Supplies  furnished  at  the  home  port  create  no  lien 
upon  a  vesseP^  and  the  port  where  the  vessel  is  enrolled 
and  licensed  is  the  home  port,  without  regard  to  the 
citizenship  of  the  owner.  A  vessel  whose  voyages  are 
confined  within  the  limits  of  the  District  where  she  is 
enrolled,  for  example  a  Baltimore  boat  which  goes  not 
outside  of  the  Chesapeake  Bay,  though  she  may  connect 
with  other  vessels,  is  not  engaged  in  foreign  voyages, 
so  that  the  furnishing  of  necessities  for  her  voyages  is  a 
maritime  contract,  or  has  connection  with  commerce  on 
the  high  seas. 

A  promissory  note,^^  given  for  articles  furnished 
toward  the  repair  of  a  vessel,  will  not  bar  an  admiralty 
suit  on  the  original  cause  of  the  action,  when  the  libel- 
lant  produces  the  note  in  court,  and  surrenders  it.^^ 

When  a  contract  for  repairs  or  supplies  to  a  merchant 
ship,  the  steamboat  Susquehanna,  was  made,  the  ques- 
tion as  to  whom  credit  was  given,  or  who  is  liable  for 
payment,  is  an  admiralty  one.^'i  A  contract  to  form  a 
partnership  in  order  to  purchase  a  vessel  is  not  a  mari- 
time one.  If  the  contracts  are  so  blended  that  the 
court  cannot  adjudicate  one  without  the  other,  the 
complainant  must  resort  to  law,  or  equity,  as  the  case 

«8  Pickell  V.  Steamer  Loper,  April  terra,  1851.    Taney's  Dec,  500. 
8»  McKim  V.  Kelsey,  April  term,  1851.    Taney's  Dec,  502. 
^°  In  the  same  case,  Taney  stated  that  consent  of  parties  could  not  confer 
jurisdiction  upon  the  court. 

71  Turner  v.  Beacham,  April  term,  1858.    Taney's  Dec,  SSZ. 


ROGER  BROOKE  TANEY  477 

may  require,  and  the  Admiralty  Court  cannot  take 
jurisdiction. 

In  a  suit  in  personam  to  recover  for  work  done  for  the 
schooner  Hamilton,''^  Taney  took  the  position  that, 
although  a  promissory  note  was  given  for  the  debt  and 
there  was  a  common  law  remedy  in  consequence,  yet 
there  is  not  necessarily  a  bar  to  an  Admiralty  suit,  for 
sometimes  a  man  may  elect  his  remedy.  Whether  the 
taking  a  note  for  a  maritime  contract  constituted  a  bar 
to  the  admiralty  proceeding  or  not,  depended  upon  the 
effect  which  the  note  had  upon  the  original  contract. 
If  it  discharged  the  contract,  there  was  an  end  of  the 
admiralty  jurisdiction.  A  surrender  of  the  note,  as  was 
offered,  could  not  renew  the  original  debt.  In  Mary- 
land, however,  a  due  bill  did  not  discharge  an  original 
contract.  The  vessel  in  question  was  a  small  one  of 
27  tons,  used  in  transporting  farm  produce  from  the 
respondent's  farms  to  Baltimore  City.  The  manner  in 
which  the  vessel  is  employed  cannot  affect  the  admiralty 
jurisdiction,  which  "depends  upon  the  vessel's  charac- 
ter." If  the  repairs  fitted  her  for  the  navigation  of  the 
sea,  the  contract  was  maritime.  **It  did  not  rest  with 
the  owner  to  confer  or  take  away  the  admiralty  jurisdic- 
tion, at  his  pleasure,  by  the  mode,  or  trade,  in  which 
he  afterwards  employed  her."^^ 

Several  cases  dealt  with  claims  for  wages.  ^"^  On  a 
voyage  to  the  West  Indies,  the  captain  broke  a  water 
bucket  over  a  seaman's  head.     On  his  return  to  Balti- 

'^^Ruppert  V.  Robinson,  April  term,  1851.    Taney's  Dec,  492. 

^3  Taney's  avoidance  of  technicalities  is  shown  by  his  refusing  to  allow 
an  amendment  of  the  respondent,  the  only  effect  of  which  would  be  to  drive 
the  libellant  to  another  forum  to  recover  a  claim  admitted  to  be  due. 

^4  In  Agnew  v.  Donnan,  April  term,  1838,  Taney's  Dec,  386,  Taney  held 
that  the  Circuit  Court  had  no  jurisdiction  to  consider  an  appeal,  when  the 
amount  claimed  was  under  $50. 


478  ROGER  BROOKE  TANEY 

more,  the  sailor  requested  his  discharge.  ^^  The  master 
could  have  refused,  but  granted  it,  and  made  the  sailor 
sign  a  receipt  for  twenty-five  cents,  ''for  assault  and 
battery,  in  full  for  all  dues  and  demands."  He  then 
brought  suit.  Taney  considered  the  amount  grossly 
inadequate  and  to  have  been  accepted  when  the  sailor 
was  under  undue  influence.  The  court  allowed  thirty 
dollars,  without  costs.  ^^ 

The  schooner  Baltimore,  bound  from  its  home  port  to 
Bordeaux,  and  owned  by  Karthaus,  an  American  citizen, 
was  captured  by  a  British  cruiser  in  the  war  of  1812 
within  a  mile  of  the  coast  of  Spain,  with  which  nation 
the  United  States  were  at  peace. ^^  The  vessel  was  car- 
ried into  a  Spanish  port  and  thence  taken  to  Great 
Britain.  The  owner  put  in  a  claim  for  damages  under 
the  Florida  Treaty  of  1819  with  Spain,  on  the  ground 
that  Spain  had  not  fulfilled  her  obligations  as  a  neutral, 
and,  therefore,  was  bound  to  make  restitution.  He  was 
allowed,  for  vessel  and  cargo  and  outward  freight,  an 
amount  which  fell  far  short  of  what  he  lost.  The  mate, 
Ardrey,  was  detained  as  a  prisoner  of  war,  until  he  was 
exchanged,  and  he  returned  to  the  United  States,  more 
than  a  year  from  the  time  he  left,  having  earned  no 
wages  after  leaving  the  vessel.  He  sued  Karthaus  to 
recover  wages  up  to  the  date  of  his  return  to  the  United 
States.  The  decision  was  that  wages  were  recoverable 
only  to  the  day  of  the  ship's  condemnation,  but  that  no 
deduction  should  be  made  from  them,  because  of  an  in- 
sufficient sum  received  by  the  owner.     "Freight  is  the 

75  Mitchell  V.  Pratt,  April  term,  1841.    Taney's  Dec,  441. 

7^  The  case  of  the  Clerk's  fees,  April  term,  1841,  Taney's  Dec,  453,  was  one 
in  which  reasonable  fees  for  a  seizure  on  land  for  a  breach  of  revenue  laws 
were  held  to  be  the  same  as  for  seizure  of  goods  on  rivers. 

"  Ardrey  v.  Karthaus,  April  term,  1836.    Taney's  Dec,  379. 


ROGER  BROOKE  TANEY  479 

mother  of  wages,"  except  against  underwriters — the 
pubHc  enemy  forms  no  exception.  ''A  neutral  power^^ 
is  not  at  Hberty  to  decide  according  to  her  own  conven- 
ience, whether  she  will  perform  her  neutral  obligations 
or  not;  she  is  bound  to  perform  them,  and,  if  she  fails  to 
do  so,  she  becomes  herself  liable  for  the  injury  which  she 
ought  to  have  prevented."  The  Spanish  had  been  dere- 
lict and  the  seamen  had  well  grounded  spes  recuperandi 
which  was  not  lost,  until  condemnation  of  the  ship.  The 
''freight  and  the  ship  itself,  to  the  last  plank,  are  Hable 
for  wages. ^^  The  claim  of  the  seamen  is  a  preferred  one 
to  be  paid,  without  any  deduction  for  the  losses  or 
expenses  of  the  owners."  The  amount  recovered  ex- 
ceeded the  claim  for  wages,  therefore,  the  libellant  was 
entitled  to  them  in  full. 

Concerning  freight,  Taney  decided  that  a  contract, 
created  by  signing  a  bill  of  lading  for  the  carriage  of 
goods  from  one  port  to  another,  is  a  maritime  one  and 
within  the  admiralty  jurisdiction.^^  The  owners  of  the 
ship  Charles,  in  1849,  advertised  that  she  would  sail  for 
San  Francisco,  but,  being  unable  to  secure  a  full  cargo, 
the  voyage  was  given  up,  and  arrangements  made  with  the 
ship  Andalusia,  to  take  over  the  freight.  One  of  the  ship- 
pers refused  to  accede  to  this  arrangement,  but  insisted 
that  the  goods  be  carried  in  the  Charles,  or  purchased 
from  him  at  the  invoice  price,  including  expenses.  The 
ship  owners  declined  to  do  either  thing,  but  deposited  the 
goods  in  a  warehouse,  subject  to  the  shipper's  orders. 
The  district  court  gave  $100  and  costs  to  the  shipper, 
when  a  libel  was  filed  and  the  libellants  appealed  from 
the  decision.  Taney  held  that  it  was  clear  that  the  ship 
was  bound  to  carry  the  goods  which  had  been  accepted 

'8  Page  3^3. 
"  Page  385. 
80  Harrison  v.  Stewart,  April  term,  1851.    Taney's  Dec,  485. 


480  ROGER  BROOKE  TANEY 

as  freight,  unless  prevented  by  some  uncontrollable 
event,  and  that  the  ship  owners  were  liable  to  damages 
for  breach  of  contract,  since  they  had  refused  to  per- 
form the  voyage  without  legal  justification.  The  An- 
dalusia was  a  ship  equal  in  character  and  qualities  to  the 
Charles,  and  so  there  existed  no  just  reason  for  awarding 
damages  to  the  amount  of  the  value  of  the  goods,  which 
were  not  lost,  nor  even  detained  without  the  owner's 
consent.  The  true  measure  of  damages  was  the  dif- 
ference between  the  value  of  the  goods  at  Baltimore  and 
in  San  Francisco ;  for  that  was  the  loss  occasioned  by  the 
breach  of  the  contract.  If  the  Charles  had  sailed  in 
February,  as  advertised,  and  gone  around  Cape  Horn, 
she  could  not  have  reached  San  Francisco  before  June. 
The  testimony  showed  that  the  market  there  was  then 
in  a  state  of  great  depression  and  the  goods  might  even 
have  been  sold  at  a  loss,  so  that  the  decision  of  the 
District  Court  was  affirmed. 

Some  Liverpool  merchants  filed  a  libel  against  the 
owner  of  the  ship  A.  Cheeseborough,^^  on  which  wheat  was 
shipped  from  Baltimore,  alleging  that  a  large  part  of  the 
cargo  had  been  lost  on  account  of  negligence.  The  de- 
fence was  successfully  made  that,  after  a  few  days  sail, 
a  storm  arose,  and  the  ship  sprang  a  leak,  wheat  came  up 
with  water  in  the  pumps,  and  the  ship  finally  went  to 
the  island  of  St.  Thomas  for  repairs.  Surveys  were 
made  there  and  showed  that  the  cargo  must  be  landed, 
some  thrown  away,  some  reladen,  and  some  sold,  as  the 
cargo  could  not  be  repacked  so  closely.  It  had  been 
loaded  in  bulk  in  Baltimore,  and  reloaded  in  bags  in 
St.  Thomas,  and  some  tobacco  which  was  also  in  the 
cargo  could  not  be  repacked  so  tightly.  The  libellants 
asserted  that  the  disaster  was  due,  not  to  the  storm,  but 

8^  Hooper  v.  Rathbone,  April  term,  1853.    Taney's  Dec,  519. 


ROGER  BROOKE  TANEY  481 

to  Straining  the  ship  through  carrying  too  much  sail, 
or  to  a  defect  in  construction  of  the  bin,  or  in  the  arrange- 
ment of  the  pumps.  Taney  did  not  agree  with  these 
contentions,  and,  saying  that  the  conduct  of  the  master 
was  prudent,  dismissed  the  Hbel  with  costs. 

A  vessel ^2  set  sail  from  New  York  to  the  West  Indies, 
expecting  afterwards  to  go  to  Franklin,  Louisiana,  and 
thence  to  Baltimore.  The  voyage  ought  usually  to  have 
been  made  in  two  months,  but  actually  took  seven,  for 
the  vessel  was  injured  by  a  storm  and  was  forced  to 
refit  at  Nassau,  so  that  she  arrived  late  for  the  sugar 
season  in  Louisiana.  After  being  notified  that  no  cargo 
would  be  given  him  on  account  of  that  detention,  the 
master  of  the  vessel  did  not  wait,  but  sailed  for  Balti- 
more. Claim  was  then  made  by  the  owners  of  the  brig 
for  damages,  and  Taney  granted  their  suit,  holding  that 
they  were  entitled  to  recover  at  Common  Law,  the  full 
amount  of  freight  that  they  would  have  earned,  if  a 
cargo  had  been  given  them;  but  that,  as  Admiralty  is 
equitable,  the  omission  to  give  notice  of  the  disaster  which 
delayed  the  vessel  so  long  beyond  her  time,  evidently 
caused  the  inability  to  provide  the  cargo  and  must 
exercise  a  serious  influence  in  estimating  damages  and 
throw  upon  the  libellants  a  part  of  the  loss.  The  master 
was  to  have  part  of  the  profits  of  the  voyage,  and,  there- 
fore, was  an  incompetent  witness  as  to  the  necessity  of 
the  delay,  nor  did  the  fact  that  he  had  been  disabled  and 
employed  a  substitute  make  him  competent,  since  the 
substitute  had  no  share  in  the  profits.  The  contract 
was  a  written  one,  and  a  custom  to  make  a  voyage  for 
the  sugar  season  could  not  be  allowed  to  affect  the  legal 
construction  of  such  a  contract.  ^^ 

82  Hall  V.  Hurlbut,  April  term,  1858.    Taney's  Dec,  589. 
^  Taney  differed  from  the  English  decision  of  Avery  v.  Bowden  in  6  Ellis 
and  Bl.  95,  and  refused  to  follow  it. 


482  ROGER  BROOKE  TANEY 

The  agent  of  the  British  barque  Invincible  entered 
into  a  charter  party  with  a  ship  master  to  go  from  City 
Point,  on  the  James  River,  with  a  cargo  of  flour  to  Rio 
de  Janeiro  and  return  with  coffee  to  Baltimore.  ^^ 
Anderson  shipped  part  of  the  flour  in  the  cargo  and 
Gittings  advanced  him  money  to  enable  him  to  do  so. 
The  voyage  proved  unfortunate,  and  the  net  proceeds 
of  the  flour  did  not  pay  Gittings'  bill.  Anderson  failed, 
and  owed  the  ship  owners  a  large  amount  for  freight. 
The  ship  master  refused  to  deliver  coffee  put  on  board  by 
Anderson's  agents  in  Brazil,  until  the  freight  should  be 
paid.  There  was  no  question  of  bad  faith,  but  merely  of 
the  rights  of  the  respective  parties.  If  the  coffee  were 
the  property  of  Anderson,  and  Gittings'  interest  was  only 
a  lien,  the  coffee  would  be  liable  to  the  whole  amount 
of  freight  due  as  a  prior  lien,  Taney  held,  but  Git- 
tings' interest  was  more  than  a  lien,  it  was  his  property. 
Anderson  had  no  right  to  possession,  nor  control  of  the 
cargo,  unless  a  surplus  remained,  after  satisfying  the 
amount,  to  secure  which  the  flour  had  been  made  deliver- 
able to  Gittings'  order.  The  coffee  had  been  pur- 
chased for  Gittings  and  shipped  to  him,  out  of  the  pro- 
ceeds of  the  flour.  The  lien  of  the  ship  owners  upon 
the  return  cargo  did  not  depend  upon  the  funds  with 
which  it  was  purchased.  Gittings  was  a  mortgagee  of 
the  flour;  but,  to  the  extent  of  his  interest,  his  rights  stood 
on  the  same  ground  as  if  he  had  been  a  purchaser.  If 
the  coffee  at  Baltimore  was  worth  more  than  the  amount 
for  which  Anderson  had  assigned  to  Gittings,  the  sur- 
plus would  be  liable  for  the  full  freight,  but  there  was 
no  surplus,  and,  consequently,  the  shipment  of  coffee  was 

84  Webb  V.  Anderson,  April  term,  1858.  Taney's  Dec,  504.  The  libel 
was  filed  by  John  Glenn,  and  he  being  appointed  District  Judge,  by  an  especial 
act  of  Congress,  the  trial  of  the  cause  was  assigned  to  Taney. 


ROGER  BROOKE  TANEY  483 

liable  only  to  the  freight  from  Rio  de  Janeiro.  The  char- 
ter party  did  not  contain  the  usual  clause,  by  which  the 
owner  binds  the  cargo  to  the  performance  of  all  cove- 
nants in  the  charter  party,  and,  on  the  general  principles 
of  the  law,  the  merchandise  is  bound  for  the  transpor- 
tation only  and  its  liability  can  not  be  extended  further, 
except  by  stipulations  in  the  charter  party. 

The  schooner  Anne,  and  another  vessel  were  built  at 
Baltimore,  ^^  for  a  Portuguese  merchant,  residing  in 
Cuba,  under  the  superintendence  of  two  men  sent  from 
Havana  by  him,  who  should  command  the  schooners 
when  they  were  finished.  He  placed  a  sum  of 
money  in  the  hands  of  his  factor  to  pay  for  the  vessels. 
When  the  Anne  was  ready  for  sea,  she  was  registered  as 
the  factor's  property.  She  was  immediately  seized  by 
the  collector  of  the  port,  under  the  act  of  1818,  as  fitted 
out  for  the  slave  trade.  It  was  proved  at  the  trial  that 
she  was  so  fitted  out  with  the  factor's  knowledge,  and 
Taney  held  that,  as  he  made  out  the  contracts  as  factor, 
he  must  be  so  regarded,  and  not  as  owner.  To  work  a 
forfeiture,  a  criminal  intent  must  exist  in  the  mind  of 
the  party  lawfully  entitled  to  direct  the  employment  of 
the  vessel.  If  the  owner  placed  the  vessel  under  a 
factor,  who  equipped  her  with  an  unlawful  intent,  the 
vessel  is  liable  to  forfeiture,  so  the  claim  of  the  Federal 
government  was  sustained. 

The  act  of  Congress  of  1838  required  steamboats  to 
have  their  boilers  and  machinery  examined  every  six 
months.  ^^  The  steamer  Jewess  carried  passengers  and 
goods  between  Baltimore  and  Norfolk  without  such 
examination  from  December  8,  1838,  until  June  15,  1839, 
and  was  then  seized  by  federal  ofificials.     The  district 

85  Strohm  v.  U.  S.,  April  term,  1840.    Taney's  Dec,  413. 

8«  Va.  &  Md.  Steam  Nav.  Co.  v.  U.  S.,  April  term,  1840.    Taney's  Dec,  418. 


484  ROGER  BROOKE  TANEY 

court  awarded  a  fine  of  $50  and  decreed  a  sale  of  the 
boat  to  pay  the  fine.  Taney,  on  appeal,  upheld  the 
decision  that  the  law  had  been  broken,  since  the  examina- 
tions must  not  be  more  than  six  months  apart,  but  held 
that  the  court  below  had  erred,  in  putting  the  penalty 
against  the  owners,  for  that  must  be  done  by  indictment 
in  a  criminal  court,  and  not  by  suit  in  Admiralty. 
Showing  his  usual  disregard  of  undue  technicality,  he 
proceeded  to  give  such  a  decree  as  ought  to  have  been 
given,  and  ordered  the  vessel  sold  and  the  proceeds 
distributed. 

The  barque  Anna,  from  Bremen  to  Baltimore,  took  on 
board  235  passengers  above  six  years  old,  of  whom  231 
were  in  the  steerage.  Twelve  of  the  passengers  died^^ 
on  the  voyage,  and,  when  the  barque  came  to  Baltimore, 
the  federal  officials  seized  her,  on  the  ground  that  she 
violated  the  statute  concerning  the  transport  of  pas- 
sengers. ^^  Taney  stated  that  it  mattered  not  whether 
an  excessive  number  had  been  brought  into  the  United 
States,  the  law  was  violated  if  too  many  passengers 
were  taken  on  board  at  the  beginning  of  the  voyage. 
The  act  was  passed  to  prevent  the  evils  of  overcrowding 
and  the  court  must  interpret  it  in  accordance  with  its 
spirit.  He  held  that  the  facts  showed  that  there  were 
not  too  many  passengers  on  board,  and  so  decreed  no 
forfeiture. 

Taney  had  a  particular  interest  in  collisions,  and  one 
of  his  most  important  decisions,  that  of  the  Genesee 
Chief,  arose  out  of  a  collision.  Four  decisions  in  such 
cases  are  reported  among  his  Circuit  Court  opinions. 
The  first  of  these  concerned  a  collision  in  the  Chesapeake 

*^  Eleven  persons  died  of  cholera  in  the  two  months  passage. 
88  U.  S.  V.  Barque  Anna,  November  term,  1854.    Taney's  Dec,  549.    The 
Court  held  that  the  act  of  1817  had  been  repealed  by  the  act  of  1848. 


ROGER  BROOKE  TANEY  485 

Bay,  between  the  steamboats  Fredericksburg 3Xid  Boston.^^ 
As  always  in  such  cases,  there  was  a  conflict  in  the  testi- 
mony, not  from  a  desire  to  misrepresent,  but  from  dif- 
ferent points  of  view,  different  times  at  which  the  atten- 
tion was  called  to  danger,  different  degrees  of  coolness, 
of  knowledge  and  of  prejudice.  Each  steamboat  was 
pulling  a  tow  of  canal  boats,  when  the  Boston  ran  into  the 
Fredericksburg.  Taney  held  that  the  former  vessel  was 
to  blame,  because  she  steered  wrongly  and  her  signal  light 
was  nearly  out.  The  "omission  of  a  known  legal  duty," 
Taney  said,  ''is  such  strong  evidence  of  negligence  and 
carelessness  that,  in  every  collision  under  such  circum- 
stances," the  offending  vessel  must  be  held  at  fault, 
unless  there  be  "clear  and  indisputable  evidence"  to  the 
contrary.  As  to  the  amount  of  damage,  there  was  no 
equal  contrariety  of  evidence.  The  witnesses  were 
"skilful  men  and  respectable  citizens  of  undoubted 
integrity,"  but,  when  all  were  trustworthy,  Taney  was 
guided,  not  by  their  number,  but  rather  by  their  know- 
ledge and  by  the  time  when  they  examined  the  boat. 
The  case  came  before  him  on  appeal  and  he  said  that  the 
District  Court's  decision  should  be  regarded  as  correct, 
unless  it  was  shown  to  be  erroneous.  "Only  the  firmest 
and  clearest  conviction  that  it  had  fallen  into  error 
would  justify"  a  reversal,  especially  when  the  case  was 
carefully  considered  below. 

The  brig  Mary  T.  Wilder  lay  at  anchor  in  the  Chesa- 
peake, in  the  ship  channel,  five  miles  below  the  Patapsco 
River,  without  lookout  or  light.  The  night  was  a  moonlit 
one,  but  the  moon  went  down  a  little  before  dawn,  and 
just  at  that  time,  the  barque  Phantom  collided  w^ith  the 
brig.  Taney  held  that  the  brig  was  guilty  of  gross 
negligence  and  that  the  want  of  a  light  on  the  Phantom 

*^  Taylor  v.  Harwood,  November  term,  1845.    Taney's  Dec,  437. 


486  ROGER  BROOKE  TANEY 

did  not  constitute  contributory  negligence,  since  there 
was  no  one  on  board  the  brig  awake  to  see  it.^^ 

The  brig  Laurel  lay  at  anchor  below  Hampton  Roads 
in  the  public  channel  five  miles  from  land,  on  a  dark 
night.  She  had  proper  signal  lights,  and  so  had  a  valid 
claim  for  damages,  when  the  schooner  Adelaide  ran 
into  her  at  5  a.m.,  on  a  December  morning,  without 
seeing  the  lights  until  within  50  yards.  The  schooner 
showed  unskilfulness  in  measures  taken,  when  she  be- 
came aware  of  the  presence  of  the  brig.^i 

Taney  gave  severe  reprobation  to  a  schooner  loaded 
with  oysters  and  bound  from  the  Patuxent  River  for 
Philadelphia,  when  she  ran  into  the  steamer  Louisiana, 
in  the  Chesapeake,  near  the  mouth  of  the  Rappahannock 
River^^  q^  a  moonlight  night.  There  was  an  incompe- 
tent lookout  on  the  schooner.  The  helmsman  was 
hardly  better,  and  did  not  mind  the  lookout.  The  mate 
of  the  Louisiana  was  competent  and  he  had  a  good 
helmsman,  but  the  latter  was  a  colored  man  and  so, 
under  the  Maryland  law  of  the  period,  could  not  be 
examined  as  a  witness.  If  the  schooner  had  been  prop- 
erly handled,  the  boats  would  have  passed  in  safety. ^^ 

One  more  case  remains  to  be  considered — a  peculiar 
one.^"^  Four  rafts  of  lumber,  which  had  floated  down 
the  Susquehanna  River  and  which  belonged  to  Jacob 
Tome,    were   anchored   at    Port   Deposit,    below   tide- 

»o  Cohen  v.  Brig  Mary  T.  Wilder.  November  term,  1856.  Taney's  Dec, 
567. 

^^  Green  v.  Schooner  Adelaide,  November  term,  1857.    Taney's  Dec,  575. 

^2  Haney  v.  Steamer  Louisiana,  November  term,  1858.     Taney's  Dec,  602. 

^3  Taney  distinguished  the  case  from  the  Genesee  Chief,  since  the  schooner 
here  was  entirely  at  fault.  A  steamboat  carrying  the  mails,  he  added,  has  no 
exemption  from  the  regular  rules. 

^  Tome  V.  Four  Cribs  of  Lumber,  November  term,  1853.  Taney's  Dec, 
533. 


ROGER  BROOKE  TANEY  487 

water.  They  were  driven  from  their  anchorage  by  high 
winds  and  high  water.  The  rafts  were  not  broken  up, 
but  were  rescued  while  floating,  and  brought  to  the 
opposite  shore  of  the  river.  Taney  held  that  no  salvage 
was  due  and  that  the  rescuer  had  no  lien  on  the  lumber, 
nor  any  right  to  retain  it  from  the  owner.  His  remedy 
against  the  owner  was  an  action  at  law  to  recover  the 
value  of  his  services.  Tome  had  sent  men  to  carry  away 
the  lumber,  when  a  man  who  lived  on  the  Harford 
County  side  came  out  with  others  in  a  boat.  Bearing 
a  gun,  he  threatened  to  shoot  Tome's  men  and  frightened 
them  away.  Tome  asked  the  Admiralty  Court  for  the 
lumber  and  for  damages,  as  he  could  not  use  it  to  fulfil  a 
contract.  Taney  said  the  breaking  away  of  the  rafts 
was  one  of  the  usual  accidents  of  trade,  and  that,  if  the 
owners  chose  to  expose  their  property  to  this  risk,  no 
one  can  acquire  a  right  in  the  lumber  by  interfering  with 
it  without  their  authority.  No  one  was  on  the  raft,  but 
that  fact  did  not  make  it  a  derelict,  for  usage  did  not 
require  anyone  to  be  there.  The  loss  was  occasioned 
rather  by  floods  from  the  land,  than  by  perils  of  the  sea. 
These  rafts  are  not  'Vehicles  intended  for  navigation" 
of  the  sea,  nor  instruments  of  commerce  or  navigation, 
but  are  mere  piles  of  lumber.  Taney  held  that  Tome 
ought  to  have  sued  out  a  writ  of  replevin  in  a  court  of 
law;  but,  with  his  usual  reasonableness,  stated  that  it 
would  be  unjust  to  deprive  him  of  the  possession,  which 
the  decision  of  the  District  Court  had  given  him, 
"  merely  to  subject  him  to  the  necessity  of  recovering  it 
again  in  a  new  suit."  As  he  mistakenly  brought  the 
controversy  into  the  Court  of  Admiralty,  however,  he 
was  given  no  costs. 


CHAPTER  XV 

The  Civil  War  (1861-1864) 

The  National  election  of  1860,  at  which  Lincoln  was 
chosen  President,  was  almost  immediately  followed  by 
the  secession  of  South  Carolina,  and  the  Gulf  States  soon 
imitated  her  example.  The  ''irrepressible  conflict"  had 
come  to  a  point  where  the  decision  must  be  made  as  to 
whether  the  union  of  States  should  continue  to  exist 
one  and  indivisible,  or  should  be  riven  into  two  con- 
federacies. The  attempt  to  save  the  Union  with  slavery, 
which  Taney  had  made  in  the  Dred  Scott  case,  had  for- 
ever failed.  The  attempt  of  the  Free  State  men  to 
destroy  slavery  was  far  as  yet  from  success.  Most  men 
in  the  North  realized,  as  did  Lincoln,  that  the  first  duty 
of  the  time  was  to  lend  every  effort  toward  the  preserva- 
tion of  the  National  Government  and  not  to  permit  the 
country  to  be  divided  into  States,  "discordant  and  bellig- 
erent." To  many,  the  question  of  duty  was  a  doubtful 
one.  Allegiance  could  be  given  to  one  power  only  and, 
when  a  State  voted  to  secede,  a  man  of  high  integrity 
might  hesitate,  if  he  had  professed  fealty  to  that  State. 
In  Virginia,  George  H.  Thomas  and  Robert  E.  Lee  were 
both  men  of  great  conscientiousness,  but  their  decisions 
as  to  this  point  were  diametrically  opposite.  In  Mary- 
land, a  border  State,  where  the  ties  of  friendship  and 
kinship  were  close  with  Pennsylvania  on  the  one  side 
and  with  Virginia  on  the  other,  the  two  conflicting  forces 
strove;  on  the  one  hand  to  carry  the  State  over  to  the 
Confederacy,  and  on  the  other  to  retain  her  within  the 
Union.  The  year  of  the  Presidential  canvass  opened 
with  five  justices  from  the  Slave  States  upon  the  Su- 

488 


ROGER  BROOKE  TANEY  489 

preme  Court  Bench.  Of  these  Daniel  of  Virginia  died 
during  1860  and  Campbell  of  Alabama  went  with  his 
State  when  it  seceded,  albeit  somewhat  unwillingly.^ 
Catron  of  Tennessee  and  Wayne  of  Georgia,  remained 
loyal  to  the  Union  in  spite  of  the  secession  of  their  States. 
Wayne  was  the  senior  of  the  Associate  Justices,  and, 
therefore,  he  presided  over  the  Court  during  Taney's 
illness  and  after  his  death.  Of  the  loyalty  of  Taney 
himself,  there  never  seems  to  have  been  a  question  at 
the  time.  He  took  no  open  part  in  the  discussion  that 
raged  about  him,  but  his  silent  influence  was  thrown  on 
the  side  of  the  Union. ^  Campbell,  wrote  at  Fort  Pulaski 
on  July  10,  1865,  that  Taney,  in  his  last  interview 
with  Campbell  "acquiesced  in  the  propriety"  of  the 
latter's  resignation.  On  April  29,  1861,  Campbell, 
informing  Taney  that  he  had  resigned  his  judgeship, 
expressed  in  strong  language  ''the  profound  impression 
that  your  eminent  qualities  as  a  magistrate  and  jurist 
have  made  upon  me.  I  shall  never  forget  the  upright- 
ness, fidelity,  learning,  thought,  and  labor  that  have  been 
brought  by  you  to  the  consideration  of  the  judgments 
of  the  court,  or  the  urbanity,  gentleness,  kindness,  and 
tolerance  that  have  distinguished  your  intercourse  with 
the  members  of  the  court  and  bar.  From  your  hands  I 
have  received  all  that  I  could  have  desired  and  in  leaving 
the  court,  I  carry  with  me  feelings  of  mingled  reverence, 
affection  and  gratitude." 

1  Southern  Historical  Society  Papers.  52  Am.  Law  Rev.  162,  Article  by 
Judge  H.  G.  Connor  of  North  Carolina.  See  also  Connor's  Life  of  Campbell, 
pp.  140  and  149. 

2  On  December  4,  1860,  Senator  Saulsbury  of  Delaware  proposed  the 
appointment  of  a  commission  to  be  composed  of  ex-President  Millard  Fillmore, 
ex-President  Pierce,  Chief  Justice  Taney,  George  M.  Dallas,  Edward  Everett, 
Thomas  Ewing,  Reverdy  Johnson,  Horace  Binney,  J.  J.  Crittenden,  and 
George  C.  Pugh,  to  confer  with  a  like  number  of  commissioners  from  the  Con- 
federate States,  in  the  endeavor  to  restore  peace  and  preserve  the  Union. 
(Moore's  Rebellion  Record,  Vol.  U,  Doc.  103.) 


490  ROGER  BROOKE  TANEY 

On  March  4,  Lincoln  took  the  oath  of  office,  admin- 
istered to  him  by  Taney.  He  had  now  sworn  in  seven 
Presidents,  a  record  which  has  not  been  equalled.^  The 
bent  and  fragile  figure  of  the  aged  jurist,  clad  in  his 
black  silk  gown,  standing  beside  the  tall  gaunt  states- 
man, made  a  striking  picture,  which  must  have  led 
bystanders  to  feel  that  the  Chief  Justice  would  hardly 
swear  in  another  President,  and,  considering  the  condi- 
tion of  the  country,  to  wonder  whether  another  Presi- 
dent would  ever  present  himself  to  take  the  oath  of 
office. 

A  little  more  than  a  month  after  Lincoln's  inaugura- 
tion, Fort  Sumter  fell  and  the  the  Sixth  Massachusetts 
Regiment  forced  its  way  through  the  streets  of  Balti- 
more, on  the  nineteenth  of  April,  struggling  against 
a  mob.  For  a  time,  the  control  of  the  city  was  in 
doubt,  until  General  Benjamin  F.  Butler,  with  Union 
forces,  seized  Federal  Hill,  which  commanded  the  centre 
of  Baltimore,  on  the  night  of  the  thirteenth  of  May. 
All  was  excitement  and  the  Union  leaders  felt  that  the 
Southern  sympathizers  must  be  sternly  repressed. 
Lincoln  authorized  the  suspension  of  the  writ  of  habeas 
corpus  in  the  cases  of  such  persons  and  their  arrest  by 
military  officers. 

This  suspension  of  the  writ  of  habeas  corpus  brought 
Taney  into  a  sharp  conflict  with  the  National  Adminis- 
tration. He  stood  firmly  for  a  strict  adherence  to  the 
Constitution,  as  he  interpreted  it,  and  his  stern  courage 
prevented  him  from  cringing  for  a  moment.  At  2.00 
a.m.  on  May  25,  1861,  John  Merryman,  a  member  of  a 
prominent  Baltimore  County  family,  was  arrested  in 
his  own  home  by  a  military  force  acting  under  orders 
of  Major-General  William   H.   Keim,   commanding  in 

'  Schouler,  VI,  p.  5. 


ROGER  BROOKE  TANEY  491 

the  State  of  Pennsylvania,  and  was  committed  to  the 
custody  of  General  George  Cadwalader,  commanding 
at  Fort  McHenry,  in  Baltimore.^  On  the  next  day,  Sun- 
day, May  26,  George  Hawkins  Williams,  one  of  Merry- 
man's  counsel,  went  to  Fort  McHenry  and  had  an  inter- 
view with  General  Cadwalader,  who  refused  to  permit 
Williams  to  have,  or  to  copy,  or  to  read  the  paper 
under  and  by  which  Merryman  was  detained  in  custody.^ 
Taney  stated  later  than  Merryman  appeared  to  have  been 
''arrested  upon  general  charges  of  treason  and  rebellion'' 
without  giving  the  names  of  the  witnesses.  Upon  the 
petition  of  Merryman,  a  writ  of  habeas  corpus  was  then 
issued  by  Taney,  sitting  at  chambers  in  Washington, 
addressed  to  the  commandant  of  the  fort,  directing 
him  to  bring  Merryman  before  the  Chief  Justice,  in 
Baltimore,  upon  Monday.  When  the  writ  was  taken  to 
General  Cadwalader  he  accepted  service,  but  declined  to 
produce  Merryman.  He  sent  Colonel  Lee,  his  aide,  who 
appeared  in  court,  with  regrets,  giving  as  his  excuse 
the  reasons  that  the  arrest  was  made,^  "by  the  orders  of 
the  Major  General  commanding  in  Pennsylvania,  upon 
the  charge  of  treason,  in  being  publicly  associated  with, 
and  holding  a  commission  as  lieutenant  in  a  company 
having  in  their  possession  arms  belonging  to  the  United 
States  and  avowing  his  purpose  of  armed  hostility 
against  the  Government,"  and  that  the  President  of  the 
United  States  had  authorized  General  Cadwalader  to 
"suspend  the  wTit  of  habeas  corpus  for  the  public  safety. " 
General  Cadwalader  showed  courtesy  to  Taney  and  sent 
by  Colonel  Lee  a  respectful  letter  to  the  Chief  Justice, 

4  See  Tyler,  pp.  640  and  ff. 
6  Tyler,  p.  641 

6  Tyler,  p.  421.  1  Moore's  Rebellion  Record  Diary  82,  Docs.  301,  2  Scharf's 
Maryland  430. 


492  ROGER  BROOKE  TANEY 

who  had  come  to  Baltimore.^  He  stated  that  Merry- 
man  had  been  arrested,  without  his  knowledge  nor 
direction,  by  Col.  Samuel  Yohe  at  General  Keim's  order, 
and  had  been  brought  to  the  fort  by  Colonel  Yohe*s  order. 
Calwalader  had  been  "informed  that  it  can  be  clearly 
established  that  the  prisoner  had  made  often  and  un- 
reserved declarations  of  his  association"  with  an  ''or- 
ganized force,  as  being  in  avowed  hostility  to  the 
Government,  and  in  readiness  to  cooperate  with  those 
engaged  in  the  present  rebellion  against  the  Govern- 
ment of  the  United  States."  The  officer's  position  was 
a  difficult  one  and  he  felt  that  he  must  execute  the 
"high  and  delicate  trust"  so  that  "in  time  of  civil  strife, 
errors,  if  any,  should  be  on  the  side  of  the  safety  of  the 
country."  Yet  he  hoped  that  he  and  Taney  could 
"cooperate  in  the  present  trying  and  painful  position, 
in  which  our  country  is  placed"  and  that  they  would 
not,  "by  any  unnecessary  want  of  confidence  in  each 
other,  increase  our  embarrassments."  He,  therefore, 
requested  that  Taney  would  "postpone  further  action," 
until  instructions  could  be  received  from  President 
Lincoln.  Taney,  however,  refused  to  delay,  but  he 
promptly  issued  an  attachment  against  General  Cald- 
walader  for  contempt  and  made  the  attachment  return- 
able upon  Tuesday.  Washington  Bonifant,  the  Marshal, 
took  the  writ  to  Fort  McHenry  and  sent  in  his  name 
at  the  outer  gate.  The  sentry  did  not  permit  the 
marshal  to  enter  and  the  messenger  returned  with 
the  reply  that  there  was  no  answer  to  the  card. 
Upon  receiving  this  information,  Taney  said  that  the 
"Marshal  had  the  power  to  summon  the  posse  comitatus 
to  aid  him  in  seizing  and  bringing  before  the  Court  the 
party  named  in  the  attachment ; "  but,  "since  the  power 

'  Tyler,  p.  643.    4  Nicolay  and  Hay  174. 


ROGER  BROOKE  TANEY  493 

refusing  obedience  was  so  notoriously  superior  to  any 
the  Marshal  could  command,  he  held  that  officer  ex- 
cused from  doing  anything  more  than  he  had  done." 
The  scene  was  a  dramatic  one.  The  infirm  and  aged 
Chief  Justice  sat  on  the  bench  surrounded  by  a  group 
of  interested  auditors.  The  afternoon  was  a  gloomy 
one  and  the  low  voice  of  Taney  could  scarcely  be  heard, 
so  that  the  listeners  gathered  closer  and  closer  around 
him,  in  order  that  they  might  understand  what  he  said. 
Taney  then  stated  that  the  detention  of  Merryman  was 
unlawful^  because:  The  ** President,  under  the  Consti- 

8  Tyler,  p.  645.    The  following  memorandum  is  of  great  interest: 

"I  was  present  at  the  hearing,  in  May,  1861,  by  Chief  Justice  Taney,  of 
the  Habeas  Corpus  case  of  John  Merryman,  who  had  been  arrested  for  having 
taken  part  in  the  burning  of  the  bridges  over  the  Gunpowder  and  other  streams 
(by  direction  of  the  Civil  authorities),  after  19  April,  1961,  and  who  was  con- 
fined at  Fort  McHenry,  Baltimore. 

"The  hearing  was  in  the  United  States  Court  Room,  on  the  first  floor  of 
what  was  commonly  called  the  'Old  Masonic  Building,'  on  the  East  side  of 
St.  Paul  Street,  half  way  between  Lexington  and  Fayette  Streets. 

"I  remember  very  distinctly  the  Aide  de  Camp  of  General  Cadwalder,  who 
commanded  at  the  Fort,  in  full  uniform,  with  red  sash  and  wearing  his  sword 
(and  I  remember  wondering  whether  wearing  a  sword  was  proper  in  a  Court 
Room),  entering  and  coming  up  to  the  right  of  the  seated  Chief  Justice  (but 
not  close  to  him) .  I  was  standing  nearly  between  the  two,  and  the  scene  is  in 
my  mind  like  a  photograph. 

"The  officer  said  that  General  Cadwalder  had  directed  him  to  say  that 
the  President  of  the  United  States  had  suspended  the  writ  of  Habeas  Corpus, 
and,  therefore,  he  could  not  produce  John  Merryman — or  closely  to  that  effect. 
And  he  then  retired.  The  Chief  Justice  thereupon  ordered  the  Clerk  of  the 
Court  to  issue  a  Writ  of  Attachment  to  bring  General  Cadwalader  into  Court, 
returnable  next  day. 

"The  next  morning,  at  about  12  o'clock,  I  think,  the  Chief  Justice  took  his 
seat,  and  called  for  a  return  to  that  writ.  The  United  States  Marshal  stated 
that  he  had  gone  to  Fort  McHenry  (the  evening  before?)  but  was  refused  ad- 
mittance at  the  gate,  and  so  had  been  unable  to  serve  the  writ.  The  Chief 
Justice,  after  a  few  words  about  the  failure  to  obey  the  writ,  proceeded:  'Under 
these  circumstances,  I  might  order  the  Marshal  to  summon  a  posse  comitatus, 
but  as  it  is  notorious  that  it  would  be  met  by  a  superior  force,  I  will  not  require 
it.    In  a  few  days,  I  will  file  a  written  opinion  with  the  Clerk  of  the  Court, 


494  ROGER  BROOKE  TANEY 

tution  of  the  United  States,  can  not  suspend  the  privilege 
of  the  writ  of  habeas  corpus,  nor  authorize  a  military 
officer  to  do  it;  (2)  a  miHtary  officer  has  no  right  to 
arrest  and  detain  a  person  not  subject  to  the  rules  and 
articles  of  war  for  an  offence  against  the  laws  of  the 
United  States,  except  in  aid  of  the  judicial  authority, 
and  subject  to  its  control,  and,  if  the  party  is  arrested 
by  the  military,  it  is  the  duty  of  the  officer  to  deliver 
him  over,  immediately,  to  the  civil  authority,  to  be 
dealt  with  according  to  law."  After  this  statement, 
Taney  remarked  that  he  would  put  his  opinion  in  writing 
and  file  it  in  the  office  of  the  Clerk  of  the  Circuit  Court 
before  the  end  of  the  week. 

Accordingly,  on  June  1,  the  Chief  Justice  filed  his 
famous  opinion  in  the  case  of  Ex  parte  Merryman.^  For 

and  direct  him  to  have  a  copy  placed  in  the  hands  of  the  President  of  the  United 
States,  so  that  that  high  Ofl&cer  may  perform  his  Constitutional  duty  of  seeing 
that  the  laws  are  enforced.'  These  were  almost  his  exact  words,  if  not  identi- 
cally the  same. 

"During  both  sittings  he  never  varied  from  his  manner  of  calm  dignity. 

"I  have  a  distinct  mental  picture  of  the  venerable  Chief  Justice,  on  one  of 
these  mornings,  walking  across  the  pavement  into  the  Court  House,  leaning  on 
the  arm  of  his  grandson,  R.  B.  Taney  Campbell,  and  passing  through  a  crowd  of 
respectful  and  sympathizing,  but  silent  spectators. 

McHenhy  Howaiud, 

5  May,  1919." 

"Major  William  M.  Pegram,  at  the  meeting  of  the  Maryland  Historical 
Society,  in  April,  1919,  also  gave  an  interesting  account  of  this  event,  of  which 
he  was  an  eye-witness. 

»  Tyler,  pp.  423,  646;  Taney's  Dec,  246,  9  American  State  Trials  880; 
Moore's  Rebellion  Record,  I,  Diary  92.  In  a  letter  to  Conway  Robinson,  written 
on  April  10,  1863,  he  stated  that  he  had  left  out,  in  the  composition  of  the 
opinion,  two  references  he  wished  he  had  included,  viz.:  (1)  that  the  Declaration 
of  Independence  stated  that  one  reason  for  the  revolt  of  the  Colonies  was  that 
the  King  "has  affected  to  render  the  military  independent  and  superior  to  the 
civil  power,"  and  the  Constitution  was  framed  on  the  principles  of  the  Declara- 
tion; and  (2)  that  Thomas  Mifflin,  President  of  the  Confederation  Congress, 
when  accepting  the  resignation  of  Washington's  command  of  the  army,  at 
Annapolis  in  1783,  said  to  him:  "You  have  conducted  the  great  military  contest 


ROGER  BROOKE  TANEY  495 

once,  Tyler's  grandiose  manner  is  not  one  whit  too  gran- 
diloquent in  writing  that  ''there  is  nothing  more  sublime 
in  the  acts  of  great  magistrates  that  give  dignity  to 
governments,  than  this  attempt  of  Chief  Justice  Taney 
to  uphold  the  supremacy  of  the  Constitution  and  the 
civil  authority  in  the  midst  of  arms."  He  recognized 
no  truth  in  the  maxim,  ^^ Inter  arma,  silent  leges,''  and 
he  fearlessly  performed  his  duty,  though  the  aged  jurist 
knew  what  peril  he  might  incur,  and  remarked,  as  he 
left  the  house  of  his  son  in  law,  James  Mason  Campbell, 
that  ''it  was  likely  he  should  be  imprisoned  in  Fort 
McHenry  before  night;  but  that  he  was  going  to  court 
to  do  his  duty."^^  The  opinion  plainly  stated  that  he 
"had  supposed  it  to  be  one  of  the  points  of  Constitutional 
Law,  upon  which  there  was  no  difference  of  opinion^^ 
and  that  it  was  admitted  on  all  hands,  that  the  privilege 
of  the  writ  could  not  be  suspended,  except  by  Act  of 

with  wisdom  and  fortitude,  invariably  regarding  the  rights  of  the  civil  power 
through  all  disasters  and  changes."  Taney  closed  his  letter  with  the  remark 
that  Washington's  conduct  contrasted,  "finely  and  nobly,"  with  that  of  "the 
military  men  of  the  present  day."    (Tyler,  p.  460.) 

Biddle  (Const.  Hist.,  p.  193)  speaks  of  the  ex  parte  Merryman  opinion  as 
"this  admirable  expression  of  the  law  upon  a  subject  involving  the  right  of  a 
freeman  of  protection  against  arbitrary  arrest  and  punishment"  and  as  "a 
fitting  conclusion  to  the  long  and  distinugished  life  of  the  Chief  Justice." 
He  criticises  Binney's  defence  of  Lincoln.  Mikell  (4  Gt.  Am.  Lawyers  188) 
enthusiastically  wrote  that  there  is  "no  sublimer  picture  in  our  history  than 
this  of  the  aged  Chief  Justice — the  fires  of  Civil  War  kindling  around  him,  .  .  . 
serene  and  unafraid,  while,  for  the  third  time  in  his  career,  the  storm  of  partisan 
fury  broke  over  his  devoted  head." 

^°  Tyler,  p.  427.  Tyler's  suggestion  that  the  scene  should  be  perpetuated 
in  a  painting  has  never  been  carried  out,  but  I  hope  that  it  may  yet  appear 
among  the  mural  decorations  of  the  Baltimore  Court  House.  Geo.  T.  Curtis 
(B.  R.  Curtis's  Life  I  240)  spoke  of  the  opinion  in  ex  parte  Merryman  as  a  "noble 
Vindication  of  the  writ  of  Habeas  Corpus,"  which  will  command  the  admiration 
and  gratitude  of  every  lover  of  constitutional  liberty,  as  long  as  our  institutions 
shall  endure." 

"  Tyler,  p.  647. 


496  ROGER  BROOKE  TANEY 

Congress."  He  commented  upon  the  fact  that  "no 
official  notice"  had  been  ''given  to  the  courts  of  justice, 
or  to  the  public,  by  proclamation  or  otherwise,"  that 
the  President  claimed  this  power.  Reference  was  made 
to  Jefferson's  request  to  Congress,  at  the  time  of  Burr's 
conspiracy,  to  determine  whether  the  public  required 
the  suspension  of  the  writ  and  then  Taney  boldly  flung 
down  the  gauntlet,  saying  that  he  believed  "that  the 
President  has  exercised  a  power  which  he  does  not 
possess  under  the  Constitution."  The  respect  which 
Taney  held  for  the  high  office  that  Lincoln  filled  required 
a  plain  and  full  statement  of  the  grounds  of  the  Chief 
Justice's  opinion,  so  as  to  show  that  the  legality  of  the 
President's  act  was  questioned,  after  "a  careful  and 
deliberate  examination  of  the  whole  subject." 

The  clause  of  the  Constitution,  which  authorizes  the 
suspension  of  the  privilege  of  the  writ  of  habeas  corpus 
is  in  the  ninth  section  of  the  first  article.  This  article  is 
devoted  to  the  legislative  department  of  the  United 
States,  and  has  not  the  slightest  reference  to  the  execu- 
tive department.  After  the  grant  of  powers  to  Congress, 
the  Constitution  guards  "certain  great  cardinal  prin- 
ciples, essential  to  the  liberty  of  the  citizens,  and  to  the 
rights  and  equality  of  the  States  by  denying  to  Congress, 
any  power  of  legislation  over  them,  which  might  have 
been  "attempted,  under  the  pretext  that  it  was  neces- 
sary and  proper  to  carry  into  execution  the  powers 
granted."  "The  great  importance  which  the  framers 
of  the  Constitution  attached  to  the  writ  of  habeas 
corpus  to  protect  the  liberty  of  the  citizens  is  proved  by 
the  fact  that  its  suspension,  except  in  cases  of  invasion 
and  rebellion,  is  first  in  the  list  of  prohibited  powers — 
and  even  in  these  cases,  the  power  is  denied,  and  its 
exercise  prohibited,   unless  the  public  safety  shall  re- 


ROGER  BROOKE  TANEY  497 

quire  it."  Congress  may,  in  truth,  judge  conclusively, 
as  to  the  requirement  of  the  public  safety,  ''but  the 
introduction  of  these  words  is  a  standing  admonition 
to  the  legislative  body  of  the  danger  of  suspending" 
the  writ. 

It  is  the  second  article  of  the  Constitution,  Taney 
continued,  that  provides  "for  the  organization  of  the 
executive  department  and  enumerates  the  powers  con- 
ferred upon  it  and  prescribes  its  duties.  And  if  the  high 
power  over  the  liberty  of  the  citizen,  now  claimed,  was 
intended  to  be  conferred  on  the  President,  it  would 
undoubtedly  be  found  in  plain  words  in  this  article. 
But  there  is  not  a  word  in  it  that  can  furnish  the  slightest 
ground  to  justify  the  exercise  of  this  power."  The 
article  carefully  limits  his  authority  and  his  powers,  in 
relation  to  the  civil  duties,  as  well  as  those  belonging  to 
his  military  character.  "He  may  not  even  arrest  any 
one  charged  with  an  offence  against  the  United  States," 
in  Taney's  opinion,  "nor  can  he  authorize  any  officer, 
civil  or  military,  to  exercise  this  power,"  for  the  fifth 
article  of  the  Amendments  to  the  Constitution  ex- 
pressly provides  that  no  person  "shall  be  deprived  of 
life,  liberty,  or  property  without  due  process  of  law — 
that  is  judicial  process."  Even  if  Congress  suspended 
the  privilege  of  the  writ  oi  habeas  corpus  axid  a  "person, 
not  subject  to  the  rules  and  articles  of  war,  was  after- 
wards arrested  and  imprisoned  by  regular  judicial 
process,"  Taney  held,  that  "he  could  not  be  detained  in 
prison,  or  brought  to  trial  before  a  military  tribunal," 
without  violation  of  the  Sixth  Amendment,  assuring  the 
accused  the  right  to  a  public  jury  trial. 

The  President's  only  power,  where  "the  life,  liberty, 
or  property"  of  a  private  citizen  are  concerned,  in 
Taney's  view,  was  that  given  him  in  the  third  section  of 


498  ROGER  BROOKE  TANEY 

the  second  article,  "which  requires  that  he  shall  take  care 
that  the  laws  shall  be  faithfully  executed. "  That  clause 
meant  that  **he  is  not  authorized  to  execute  them  him- 
self, or  through  agents  or  officers,  civil  or  military, 
appointed  by  himself;  but  he  is  to  take  care  that  they 
faithfully  carried  into  execution,  as  they  are  expounded 
and  adjudged  by  the  coordinate  branch  of  the  Govern- 
ment, to  which  that  duty  is  assigned  by  the  Constitu- 
tion." In  other  words,  in  exercising  this  power,  the 
President  acts  in  subordination  to  judicial  authority, 

assisting  it  to  execute  its  process  and  enforce  its  judg- 
ments.^^ 

Taney  believed  that  these  ''provisions  in  the  Consti- 
tution" were  "expressed  in  language  too  clear  to  be 
misunderstood  by  anyone"  and  that  they 

left  no  ground  whatever  for  supposing  that  the  President,  in  any 
emergency  or  in  any  state  of  things,  can  authorise  the  suspension  of 
the  privilege  of  the  writ  of  habeas  corpus,  or  arrest  a  citizen,  except 
in  aid  of  the  judicial  power.  He  certainly  does  not  faithfully 
execute  the  laws,  if  he  takes  upon  himself  legislative  power,  by 
suspending  the  writ  of  habeas  corpus,  and  the  judicial  power  also, 
by  arresting  and  imprisoning  a  person  without  due  process  of  law. 
Nor  can  any  argument  be  drawn  from  the  nature  of  sovereignty, 
or  the  necessity  of  government  for  self  defence,  in  times  of  tumult 
and  danger.  The  Government  of  the  United  States  is  one  of 
delegated  and  limited  powers.  It  derives  its  existence  and  author- 
ity altogether  from  the  Constitution. 

12  The  inconsistency  of  this  position  with  that  taken  by  Taney's  friend, 
Andrew  Jackson,  in  the  Cherokee  Cases,  can  not  escape  any  reader  who  recalls 
the  period  of  Jackson's  presidency.  Taney's  view  here  is  far  at  variance  with 
that  of  the  man  who  said,  "John  Marshall  has  made  his  decision,  now  let  him 
enforce  it."  At  that  moment,  a  stirring  blast  upon  Taney's  bugle  horn  would 
have  been  worth  a  thousand  men,  but  he  gave  no  encouragement  to  the  forces  of 
union  and  in  the  minds  of  his  friends,  the  Ferine  family,  he  left  the  impression 
that  he  sympathized  with  secession .  This  impression  may  not  have  been  correct, 
but  Taney  was  blameworthy  in  so  acting  as  to  leave  this  impression. 


ROGER  BROOKE  TANEY  499 

After  a  somewhat  extended  account  of  the  experience 
of  England  with  the  writ  of  habeas  corpus  under  the 
Stuarts,  which  account  Taney  drew  from  Blackstone  and 
Hallam  and  which  he  gave,  because  he  maintained  that 
the  provision  in  the  Fifth  Amendment  was  "nothing  more 
than  a  copy  of  the  like  provision  in  the  English  Con- 
stitution," he  turned  to  American  precedents  and  found 
them  easily.  Story's  Commentaries^^  and  Marshall's 
opinion  in  Ex  parte  BoUman  and  Swarthwout^^  dis- 
tinctly placed  the  power  to  suspend  the  writ  in  the  hands 
of  Congress. 

Taney  could  not  forget  that  the  suspension  of  the 
writ  was  not  the  only  point  involved,  but  he  fore- 
shadowed the  ground  later  taken  by  the  Court,  for- 
bidding the  establishment  of  military  law,  when  the 
Civil  Courts  were  available, ^^  and  he  insisted  that,  up 
to  the  time  of  Merryman's  arrest,  "there  had  never 
been  the  slightest  resistance,  or  obstruction,  to  the 
process  of  any  Court,  or  Judicial  officer  of  the  United 
States  in  Maryland,  except  by  the  military  authority." 
Therefore,  the  military  officer,  who  "had  reason  to 
believe"  that  Merryman  "had  committed  any  offence 
against  the  laws  of  the  United  States,"  ought  to  have 
gone  to  the  proper  legal  authorities  and  followed  the 
ordinary  course  of  the  law. 

If  the  authority  confided  by  the  Constitution  to  the 
judiciary  may,  "under  any  circumstances,  be  usurped 
by  the  military  power  at  its  discretion,  the  people  of 

13  III  Sec.  1336. 

"  4  Cranch  95. 

Willoughby  (Supreme  Court,  p.  75)  wrote  that  "when  President  Lincoln 
refused  obedience  to  Taney's  decision  in  the  Merryman  case,  he  acted  in  an 
unconstitutional  manner."  The  "dilemma  in  which  Lincoln  was  placed  was 
the  result  of  a  form  of  government  with  limited  powers." 

"  Ex  parte  Milligan. 


500  ROGER  BROOKE  TANEY 

the  United  States  are  no  longer  living  under  a  govern- 
ment of  laws,  but  every  citizen  holds  life,  liberty,  and 
property  at  the  will  and  pleasure  of  the  army  officer, 
in  whose  military  district  he  may  happen  to  be  found." 
Such  was  the  hard  dilemma,  which  Taney  placed  before 
the  country.  He  had  exercised  all  his  power,  but  that 
power  had  "been  resisted  by  a  force  too  strong"  for 
him  to  overcome.  He  could  only  order  that  the  pro- 
ceedings be  filed  in  the  Circuit  Court  and  that  a  copy 
be  sent  to  the  President,  in  the  hope  that  "the  officer 
who  has  incurred  this  grave  responsibility  may  have 
misunderstood  his  instructions,  and  exceeded  the  au- 
thority intended  to  be  given  him." 

"The  natural  strength"  of  the  aged  jurist's  intellect 
had  not  been  abated,  when  he  penned  this  opinion. 
For  forcibleness,  perspicacity,  and  convincing  logic, 
it  was  not  exceeded  by  anything  he  ever  wrote.  Un- 
doubtedly, Taney  was  legally  right  and  Lincoln  was 
legally  wrong.  Undoubtedly,  Lincoln's  course  was 
dangerous  and,  if  acquiesced  in,  might  well  have  been  a 
detrimental  precedent  in  the  time  of  a  less  scrupulous 
and  less  devoted  successor.  Yet  the  reader  must  regret 
that  the  Chief  Justice  showed  in  his  words,  no  apprecia- 
tion of  the  facts  that  the  life  of  the  country  was  at  stake  in 
those  days  and  that  to  Lincoln  much  was  to  be  forgiven 
because  he  loved  much.  The  occasion  offered  Taney 
a  magnificent  opportunity  to  give  men  a  clarion  call 
to  patriotic  fulfilment  of  their  Constitutional  duties 
and  to  personal  services  to  secure  the  preservation  of  the 
Union.  The  opinion  is  the  product  of  the  mind  of  a 
lawyer,  not  of  that  of  a  statesman,  of  a  man  who  loved 
his  country,  but  whose  love  was  encrusted  in  legality. 
Taney  sent  a  copy  of  the  opinion  to  Lincoln,  who  ap- 
parently took  no  notice  of  it,  a  fact  which  must  cause 


ROGER  BROOKE  TANEY  501 

regret  as  a  blemish  in  the  character  of  the  great  Presi- 
dent. Merryman  was  finally  released  without  trial^*' 
and  a  fierce  war  of  pamphlets  arose  over  the  question 
of  his  arrest  and  detention.  Lincoln's  position  found 
its  chief  support  in  a  pamphlet  entitled  "the  Privilege 
of  the  Writ  of  Habeas  Corpus"  by  the  great  Philadelphia 
lawyer,  Horace  Binney.  Taney's  position  found  its 
leading  advocate  in  his  former  associate  on  the 
Supreme  Court  Bench,  Judge  Benjamin  R.  Curtis. ^^ 

Lincoln  felt  that  he  should  defend  his  position^ ^ 
and,  in  the  original  draft  of  his  message  to  Congress  at 
the  following  session,  wrote: 

In  my  opinion,  I  violated  no  law.  The  provision  of  the  Con- 
stitution that  the  privilege  of  the  writ  of  Habeas  Corpus  shall  not 
be  suspended  unless,  when  in  cases  of  rebellion  of  invasion,  the 
public  safety  may  require  it,  is  equivalent  to  a  provision — is  a 
provision  that  such  privilege  may  be  suspended  when,  in  cases  of 
rebellion  or  invasion,  the  public  safety  does  require  it.  I  decided 
that  we  have  a  case  of  rebellion  and  that  the  public  safety  does  re- 
quire the  qualified  suspension  of  the  writ  of  Habeas  Corpus,  which 
I  authorized  to  be  made.  Now,  it  is  insisted  that  Congress,  and 
not  the  Executive,  is  vested  with  this  power.  But  the  Constitu- 
tion itself  is  silent  as  to  which  or  who  is  to  exercise  the  power; 
and  as  the  provision  was  plainly  made  for  a  dangerous  emergency, 
I  cannot  bring  myself  to  believe  that  the  framers  of  that  instrument 
intended  that,  in  every  case,  the  danger  should  run  its  course, 
until  Congress  could  be  called  together,  the  very  assembling  of 
which  might  be  prevented,  as  was  intended  in  this  case,  by  the 
rebellion. 

16  3  Scharf's  Md.  430. 

17  Life  of  Curtis,  I,  p.  350  and  p.  459.  S.  S.  Nicholas  of  Kentucky  in  a 
separate  pamphlet  and  R.  L.  Buck  in  the  Danville  Quarterly  Review  for  De- 
cember, 1861,  also  warmly  upheld  Taney's  contention. 

18  4  Nicolay  and  Hay  176.  See  6  Richardson's  Messages  and  Papers  of  the 
Presidents  25  for  final  form. 


502  ROGER  BROOKE  TANEY 

Lincoln's  logic  is  not  convincing  and  has  not  convinced 
the  American  people.  Congress  by  statu te^^  vested  the 
right  of  suspending  the  writ  of  habeas  corpus  in  the 
President  and  that  Statute  impliedly  asserted  that  the 
power  to  authorize  such  suspension  was  placed  in  itself 
alone.  Winthrop,  in  his  ''Military  Law''^*^  sums  up 
the  whole  matter,  by  saying  that  Taney's  "ruling  has 
been  concurred  in  by  a  series  of  decisions  in  the  United 
States  and  State  Courts  and  by  other  recognized 
authorities." 

A  curious  sequel  to  this  incident  occurred  in  the  Con- 
federate States.  Alexander  H.  Stephens,  Vice  Presi- 
dent of  the  Confederacy,  was  bitterly  opposed,  during 
the  latter  part  of  1864,  to  the  attempts  of  Jefferson 
Davis  to  act  in  the  same  way  as  Lincoln  had  done. 
On  December  5,  he  wrote  his  brother,  Linton,  from 
Richmond,  that  he  had  read  Taney's  opinion  on  the 
preceding  day.  "It  is  a  great  paper,  I  will  try  to  have 
it  reprinted  in  Georgia.  It  sets  at  naught  the  prevailing 
opinions  here  on  the  power  of  Congress  over  this  great 
writ  of  right,  "21  and  on  Christmas  Eve,  with  the  same 
purpose,  he  went  to  the  Whig  office  and  offered  the 
proprietors  $250,  if  they  would  republish  Taney's 
decision.  22 

When  he  wrote  his  "Constitutional  View  of  the  War, " 
some  years  later,  he  had  not  changed  his  high  opinion 
of  the  value  of  Taney's  opinion,  the  text  of  which  he 
printed  in  an  appendix  to  the  book.  "  In  the  decision, " 
he  wrote,  "will  be  found  those  vital  principles  of  our 
federal  compact — made  for  war  as  well  as  for  peace — 

»  Act  of  1813,  chapter  81. 

"  Pages  53-57. 

*^  Johnston  and  Brovme's  "Life  of  Stephens,"  p.  475. 

*'  Life  of  Stephens,  p.  476. 


ROGER  BROOKE  TANEY  503 

which  should  ever  be  the  guide  of  all  in  authority, 
whether  in  the  civil  or  military  service,  and  which  will 
remain  forever  to  be  studied  and  cherished  by 
every  true  friend  of  the  Constitutional  Liberty  in  this 
Country.  "23 

Taney's  bitterness  against  the  action  of  the  President 
was  so  great  that  when  his  wife's  grandnephew,  Mc- 
Henry  Howard,  came  to  bid  him  goodbye  before  starting 
South  to  enlist  in  the  Confederate  Army,  two  or  three 
days  before  June  1,  Taney  said  to  the  young  man: 
''The  circumstances  under  which  you  are  going  are  not 
unlike  those  under  which  your  grandfather  (Col. 
John  Eager  Howard)  went  into  the  Revolutionary 
War." 

Yet,  Taney's  detachment  from  partisanship  was  such 
that  he  left  the  impression  on  his  ardent  young  relative 
that  "he  held  to  his  lofty  ideal  of  being  at  the  head  of  one 
of  the  three  great  coordinate  departments  of  govern- 
ment under  the  Constitution,  and  confined  himself  to 
his  duties  in  that  high  office." 

Taney's  own  view  upon  secession  and  the  proper 
policy  to  be  pursued  toward  the  sister  States,  was  that 
it  were  better  to  permit  the  South  to  depart  from  the 
Union,  as  he  showed  in  a  letter  he  wrote  ex-President 
Franklin  Pierce  from  Washington,  on  June  12,  1861, 
in  answer  to  one  from  Pierce  expressing  approval  of  the 
opinion  in  the  Merryman  case.^^ 

His  sentiments  were  expressed  nowhere  else  in  writing, 
as  far  as  I  know,  and  are  so  important  that  they  should 
be  reproduced  in  full.     Taney  wrote: 

Your  cordial  approbation  of  my  decision  in  the  case  of  the 
habeas  corpus  has  given   me   sincere  pleasure.     In   the  present 

23  Vol.  II,  p.  414. 

«  The  letter  is  printed  in  10  Am.  Hist.  Rev.  368. 


504  ROGER  BROOKE  TANEY 

state  of  the  public  mind,  inflamed  with  passion  and  seeking  to 
accomphsh  its  object  by  force  of  arms,  I  was  sensible  of  the 
grave  responsibility  which  the  case  of  John  Merryman  cast  upon 
me.  But  my  duty  was  plain — and  that  duty  required  me  to 
meet  the  question  directly  and  firmly,  without  evasion — whatever 
might  be  the  consequences  to  myself. 

The  paroxysm  of  passion  into  which  the  country  has  suddenly 
been  thrown,  appears  to  me  to  amount  almost  to  delirium.  I  hope 
that  it  is  too  violent  to  last  long,  and  that  calmer  and  more  sober 
thoughts  will  soon  take  its  place;  and  that  the  North,  as  well  as 
the  South,  will  see  that  a  peaceful  separation,  with  free  institutions 
in  each  section,  is  far  better  than  the  union  of  all  the  present  states 
under  a  military  government,  and  a  reign  of  terror  preceded  too 
by  a  civil  war  with  all  its  horrors,  and  which,  end  as  it  may,  will 
prove  ruinous  to  the  victors  as  well  as  the  vanquished.  But  at 
present,  I  grieve  to  say,  passion  and  hate  sweep  everything  before 
them. 

The  Merryman  case  was  not  the  only  thing  which 
troubled  Taney  at  this  time.  He  had  invested  his 
"very  small  fortune,"  entirely,  in  Virginia  state  stock. 2^ 
After  he  removed  from  Baltimore  to  Washington,  he 
appointed  a  friend,  Mr.  D.  M.  Ferine,  as  his  attorney  in 
fact,  to  collect  the  interest  through  the  Union  Bank, 
where  Taney  still  kept  his  account.  In  the  latter  part 
of  June  1861,  Mr.  Ferine  sent  the  order  for  its  payment 
as  usual  and  had  it  returned  to  him  unpaid,  on  account 
of  a  law  recently  passed  by  Virginia,  forbidding  the 
''payment  of  dividends  to  stockholders  in  the  non- 
seceding  States."  A  few  days  later,  the  Union  Bank 
received  a  letter  from  its  Richmond  correspondent 
requesting  the  return  of  the  order  and  stating  that  an 
attempt  would  be  made  to  have  the  interest  paid.  Mr. 
Ferine  wrote  Taney  to  ask  his  opinion  and,  on  July  18, 

«  Tyler,  pp.  479-482. 


ROGER  BROOKE  TANEY  505 

Taney  replied  from  Washington,  refusing  to  consent 
that  any  steps  be  taken  to  collect  the  money.  He 
wrote  his  friend: 

I  cannot  receive  the  money.  It  is  true  it  is  due  to  me  from  the 
State;  but.  .  .  .  if  mine  is  paid,  it  is  a  matter  of  favor  and  not 
of  right,  under  the  existing  law  of  the  State.  If  I  were  a  private 
individual,  I  would  accept  it;  but,  in  my  official  position  and  in 
the  present  posture  of  public  affairs,  I  cannot  consent  to  an  ex- 
ception in  my  favor,  when  other  stockholders  in  Maryland  are 
refused  one. 

I  am  sensible  that  this  proposition  has  arisen  from  the  personal 
kindness  of  friends  in  Richmond,  who  know  that  public  life  has  not 
enriched  me;  and  I  am  very  sure  that  it  never  entered  their  minds 
that  anyone  would  suspect  them  of  unworthy  motives  in  offering, 
or  me  in  receiving  it.  But  yet  I  think  the  offer  was  made  inad- 
vertently and  under  the  impulses  of  kind  feelings  which  prevented 
them  from  looking  at  the  interpretation  which  baser  minds  might 
put  upon  the  offer.  Malignity  would  not  fail  to  impute  unworthy 
motives  to  them  and  me,  and  in  the  present  frenzied  state  of  the 
public  mind,  men,  who  do  not  know  my  Virginia  friends  or  me, 
would  be  ready  to  believe  it. 

The  letter  is  one  of  a  high-toned,  upright  gentleman, 
but  the  loss  of  the  income  must  have  tried  Taney  sorely. 

In  December,  1861,  the  Supreme  Court  met  as  usual, 
there  being  two  vacancies  on  the  Bench.  Taney  was 
ill  a  great  part  of  the  term  and  yet  he  took  an  active 
part  in  the  work  of  the  tribunal.  Justice  McLean  had 
died  and  Taney  delivered  a  brief  eulogy  over  him.^^ 
He  also  delivered  a  number  of  short  opinions  upon 
matters  of  practice,  as  was  his  wont.^'     He  held  that  to 

26  1  Black  12. 

^^  (1)  Brown  v.  Hart,  1  Black  38,  Writ  of  error  and  service  of  citation  on 
lawyer;  (2)  Wabash  and  Erie  Canal  v.  Beers,  1  Black  54,  finality  of  decree  of 
Circuit  Court;  (3)  Hecker  v.  Fowler,  1  Black  95,  writ  of  error  not  on  record; 


506  ROGER  BROOKE  TANEY 

have  a  review  of  the  action  of  a  State  Court  on  the 
ground  of  violation  of  the  State  Constitution  the  point 
must  have  been  raised  in  the  Court  below.^^  In  other 
cases,  he  decided  that  it  was  not  negHgence  to  present 
on  Monday  for  payment,  a  check  drawn  on  Saturday  i^^ 
and  that,  though  a  corporation  is  not  a  citizen  within 
the  meaning  of  the  Constitution,  yet  there  was  a  legal 
presumption  that  its  members  are  citizens  of  the  State 
in  which  the  corporation  had  its  legal  existence.^® 
He  refused  to  grant  a  writ  of  prohibition  against  the 
execution  of  the  penalty  of  death  imposed  upon  a  man 
for  engaging  in  the  African  slave  trade,  which  had  been 
declared  to  be  piracy,^^  In  two  cases,  he  discussed  the 
limits  of  the  admiralty  jurisdiction, ^^  holding  that, 
while  the  Court  had  never  regarded  the  federal  admiralty 
powers  restricted  to  those  used  in  England,  yet  it  did 
not  claim  all  civil  law  powers  for  admiralty  courts. 

The  year  of  1862  wore  away,  with  its  unsuccessful 
Peninsular  Campaign  in  Virginia  of  the  Army  of  the 
Potomac  under  McClellan  and  the  unsuccessful  Mary- 
land campaign  of  the  Army  of  Northern  Virginia  under 
Lee.  Lincoln  filled  the  vacancies  in  the  Supreme 
Court  by  the  appointment  of  two  Union  men.  Justices 
Clifford  and  Field.  The  Session  of  the  Supreme  Court, 
which  opened  in  December  1862,  was  the  last  at  which 
Taney  presided.     His  health  was  clearly  failing  and  he 

(4)  U.  S.  V.  Knight,  1  Black  488,  procedure  as  to  reopening  a  case  concerning 
land  ownership  in  California;  (5)  Maguire  v.  Tyler,  1  Black  195.  He  dissented 
(p.  203)  in  a  case  involving  a  Louisiana  land  title,  as  he  thought  there  was  no 
jurisdiction. 

28  Farney  v.  Towle,  1  Black  350;  Hoyt  v.  Sheldon,  1  Black  516. 

"  Brown  v.  Hart,  1  Black  38. 

30  Ohio  &  Miss.  R.  R.  v.  Wheeler,  1  Black  286. 

31  Ex  parte  Gordon,  1  Black  503. 

»2  Bags  of  Linseed,  1  Black  108;  Steamer  St.  Lawrence,  1  Black  522. 


ROGER  BROOKE  TANEY  507 

delivered  only  three  opinions  at  that  term  and  these 
were  brief  and  in  unimportant  suits. ^^ 

The  most  important  event  of  this  term  in  which  Taney 
took  active  part  was  the  decision  of  the  Prize  Cases, 
which  involved  the  question  as  to  whether  Civil  War 
existed  before  Congress  declared  it  on  July  13,  1861, 
and,  consequently,  whether  Lincoln  had  the  right  to 
blockade  the  coasts  of  the  Confederate  States  prior  to 
that  time.3^ 

Richard  H.  Dana  wrote  that  it  was  a  ''difficult  and 
delicate  task"  to  satisfy  the  Supreme  Court  that  the 
executive  had  possessed  this  right,  without  ''weakening 
a  claim  to  treat  the  Confederates  as  rebels,"  and  that 
there  was  a  common  belief  that  the  Court  at  the  outset 
"was  inclined  to  very  different  views,  some  even  doubting 
the  right  to  use  force  against  the  rebels. "  The  decision 
was  in  favor  of  the  lawfulness  of  Lincoln's  establishment 
of  the  blockade;  but  Taney  joined  with  Justices  Catron 
and  Clifford,  in  agreeing  with  Justice  Grier's  dissenting 
opinion,  and  the  decision  was  made  by  the  narrow 
majority  of  one. 

During  the  sitting  of  the  Court,  Justice  Wayne  wrote 
Taney,  suggesting  that  the  Justices  call  upon  the 
President,  on  New  Year's  Day,  1862.  Too  great  bitter- 
ness had  entered  Taney's  soul  to  permit  him  to  do  this 
and   he   briefly   responded   that  he   expected   to   have 

23  (1)  Callan  v.  May,  2  Black  543,  concerning  real  estate  in  the  District  of 
Columbia.  He  held  that  the  allowance  of  an  appeal  does  not  show  that  the 
judge  granting  it  thought  the  appellant  was  right.  (2)  Congdon  v.  Goodman, 
2  Black  574.  The  controversy  was  held  to  be  not  a  Federal  but  State  one. 
(3)  De  Kraft  v.  Barney,  2  Black  714,  another  case  from  the  District  of  Columbia 
Court.  Jurisdiction  must  come  through  money  involved,  or  a  right  the  value  of 
which  may  be  calculated  in  money,  not  through  a  guardianship  of  the  person  and 
property  of  children. 

"  See  T.  K.  Lothrop's  Charles  Francis  Adams,  vol.  II,  p.  414.  2  Black 
635. 


508  ROGER  BROOKE  TANEY 

guests  on  that  day  and,  besides,  that  he  knew  of  no 
binding  custom  which  should  cause  it  to  be  necessary 
for  the  justices  to  make  such  a  call.^^ 

In  February  1863^^  Taney  wrote  the  Secretary  of  the 
Treasury  a  powerful  protest  against  the  levy  of  an 
income  tax  of  three  per  centum  upon  the  salaries  of 
federal  judges.  He  appealed  to  the  Constitutional 
provision  that  the  compensation  of  the  judges  "shall 
not  be  diminished  during  their  continuance  in  office" 
and,  properly,  claimed  that  the  tax  was  such  a  diminu- 
tion. This  provision  of  the  Constitution  is  not  only 
plain,  but  is  one  of  the  ''most  important  and  essential" 
ones.  ''The  articles,  which  limit  the  powers  of  the 
Legislative  and  Executive  branches  of  the  Govern- 
ment,"  Taney  wrote,  "and  those  which  provide  safe- 
guards for  the  protection  of  the  citizen  in  his  person 
and  property,  would  be  of  little  value,  without  a  Judi- 
ciary to  uphold  and  maintain  them,  which  was  free 
from  every  influence,  direct  or  indirect,  that  might  by 
possibility  in  times  of  political  excitement,  warp  their 
judgments." 

He  spoke  thus  of  the  matter: 

The  Judiciary  is  one  of  the  three  great  departments  of  the  govern- 
ment, created  and  established  by  the  Constitution.  Its  duties  and 
powers  are  specifically  set  forth  and  are  of  a  character  that  requires 
it  to  be  perfectly  independent  of  the  other  departments.  And  in 
order  to  place  it  beyond  the  reach,  and  even  above  the  suspicion 
of  any  such  influence,  the  power  to  reduce  their  compensation  is 
especially  withheld  from  Congress  and  excepted  from  their  power 
of  legislation. 

Although  the  act  was  in  so  far  "unconstitutional  and 
void, "  there  was  no  way  to  bring  the  matter  before  the 

w  13  Md.  Hist.  Mag.  167. 
»6  Tyler,  432. 


ROGER  BROOKE  TANEY  509 

Secretary  except  by  letter,  for  no  judicial  proceeding 
upon  this  question  could  with  propriety  be  heard  and 
decided  by  any  judge,  since  all  had  an  interest  in  it. 
Taney  was  unwilling  to  "leave  it  to  be  inferred,"  from 
his  silence,  that  he  admitted  or  acquiesced  in  the  right 
of  the  Legislature  to  diminish,  in  any  way,  the  salaries 
of  judges.  "Having  been  honored  with  the  highest 
judicial  station  under  the  Constitution,"  Taney  con- 
tinued, "I  feel  it  to  be  the  more  especially  my  duty  to 
uphold  and  maintain  the  constitutional  rights  of  that 
department  of  the  Government,  and  not  by  any  act  or 
word  of  mine,  have  it  supposed  that  I  acquiesce  in  a 
measure  that  displaces  it  from  the  independent  position 
assigned  to  it  by  the  statesmen  who  framed  the  Con- 
stitution. "  He  requested  that  the  protest  be  placed  on 
the  public  files  of  the  Treasury  Department.  The 
Secretary,  Salmon  P.  Chase,  who  afterwards  succeeded 
Taney  as  Chief  Justice,  took  no  notice  of  this  letter 
and,  after  waiting  for  several  weeks,  Taney,  with  the 
assent  of  his  fellow  Justices,  had  the  letter  entered  on 
the  Court's  records. 

Taney  was  unquestionably  right  in  his  contention 
and,  in  April,  1872,  the  Treasury  Department  changed 
its  practice  and  ceased  to  deduct  any  part  of  the  Judges' 
salaries. 

About  this  time,  must  be  dated  two  manuscript 
opinions  which  are  in  the  New  York  Public  Library. 
One  dealt  with  paper  money  and  the  possibility  of 
Congress  making  it,  by  enactment,  a  legal  tender  for 
the  payment  of  debts.  Taney  denied  the  power  to  do 
this,  as  it  was  neither  granted  in  express  terms,  nor 
incident  to  a  power  conferred,  nor  necessary  and  proper 
to  carry  out  such  a  power.  The  power  to  emit  bills  of 
credit  had  been  denied  to  the  States  and  was  not  con- 


510  ROGER  BROOKE  TANEY 

f erred  on  Congress.  Congress  had  power  to  fix  the 
value  of  foreign  coin,  to  prevent  States  from  making^ 
such  coin  a  legal  tender  at  an  exaggerated  value;  to 
coin  money,  that  is  to  stamp  marks  of  value  on  bits  of 
metal;  and  to  borrow  from  willing  lenders;  but  these 
powers  are  far  different  from  the  power  to  clothe  paper 
money  with  the  qualities  of  legal  tender. 

The  other  opinion  was  against  the  constitutionality 
of  the  conscription  law.  The  Confederacy  which  existed 
prior  to  the  Constitution  was  a  mere  league  of  indepen- 
dent States.  Under  the  Constitution,  a  line  of  division 
was  marked  out  and  each  government  was  independent 
of  the  other  in  the  sphere  assigned  to  it.  ''Neither  owes 
allegiance  to,  or  is  inferior  to  the  other,"  Taney  con- 
tinued. ''The  citizen  owes  allegiance  to  the  general 
government  to  the  extent  of  the  powers  conferred  on  it, 
and  no  further,  and  he  owes  equal  allegiance  to  the  State, 
to  the  extent  of  the  sovereign  power  they  reserved." 
He  shows  in  his  discussion,  the  old  fatal  dualism,  the  old 
failure  to  distinguish  between  fealty  and  allegiance,  the 
old  refusal  to  acknowledge  that  no  man  can  serve  two 
masters.  Neither  government,  in  Taney's  view,  "could 
lawfully  afford  protection  to  the  citizens  beyond  the 
limits  of  their  respective  powers,  no  allegiance  can  be 
claimed  or  is  due,  from  the  citizen  to  either  government 
beyond  those  limits."  It  is  a  divided  allegiance.^^  The 
"sovereignty  of  the  general  government  is  not  a  general 
and  pervading  one"  and  "the  sovereignty  of  the  State, 
to  the  extent  of  the  reserved  powers,  is  wholly  indepen- 
dent of  the  general  government.  "^^  Congress  may  raise 
armies    exclusively    under    federal    control,    but    these 

"  He  cited  Ableman  v.  Booth  to  prove  this  statement. 
38  He  cited  the  11th  Amendment  to  the  United  States  Constitution  to  prove 
this. 


ROGER  BROOKE  TANEY  511 

national  forces  must  be  volunteer.  If  conscription  is 
constitutional,  the  militia  of  the  States  is  absorbed  in 
the  army.  Great  Britain  raised  her  armies  by  volun- 
teering and  such  was  the  contemporaneous  interpreta- 
tion of  the  power  given  Congress.  The  war  power  of 
the  federal  government  is  as  clearly  defined  in  the 
Constitution  as  is  the  peace  one.  Under  any  other 
interpretation,  the  government  created  by  the  Con- 
stitution is  put  aside  and  a  temporary  one  is  installed 
in  its  place.  The  State  has  the  sole  right  to  enlist  the 
militia,  yet,  under  the  conscription  law,  the  Federal 
Government  can  disorganize  the  States,  as  their  officers 
are  not  exempted,  though  Federal  officers  are.  Taney 
added,  *'  I  speak  of  the  Constitutional  and  lawful  powers, 
not  of  the  physical  power  which  the  Constitution  had 
placed  in  the  hands  of  federal  government."  The '  'Federal 
government  pervades  the  whole  nation  and  is  supreme 
in  its  field,  but  it  is  limited"  in  its  sphere.  "The  State 
sovereignty  preserves  tranquillity  in  the  State,  and 
guards  the  life,  liberty  and  property  of  the  individual 
citizen  and  protects  him  in  his  home  and  in  his  ordinary 
business  pursuits.  "^^ 

An  interesting  light  on  Taney's  character  is  afforded 
in  connection  with  the  working  of  the  draft.^^  His  negro 
body  Servian t  Madison,  who  had  waited  upon  Taney  so 
long  as  to  become  indispensable  to  the  Chief  Justice  in 
his  extreme  old  age,  was  drafted.  Taney's  physician. 
Dr.  Grafton  Tyler,  had  long  known  that  Madison  had 
organic  disease  of  the  heart  and  was,  therefore,  dis- 
qualified.    Taney  also  knew  it;  but  when   Dr.   Tyler 

3®  The  Supreme  Court,  in  the  December  Term  1917,  decided  that  the  Draft 
Law  of  1917  was  constitutional  in  the  case  of  Arves  v.  U.  S.,  38  Sup.  Ct.  Rep. 
159. 

«o  Tyler,  p.  482. 


512  ROGER  BROOKE  TANEY 

proposed  to  make  an  affidavit  to  that  effect,  the  old 
Roman  refused  to  permit  the  servant  to  be  so  excused, 
but  paid  $100  for  a  substitute  for  him. 

Taney's  last  official  duties  were  performed  in  con- 
nection with  the  Spring  Term  of  Court  in  Baltimore, 
in  1863.  In  May,  one  Carpenter  came  before  him 
there.  For  failing  to  obtain  a  permit  prescribed  for 
trade  in  Maryland,  Carpenter's  goods  had  been  seized. 
Taney  held  that  these  executive  regulations  were  void, 
and  the  acts  done  thereunder  were  illegal.  He  main- 
tained^i  *'if  these  regulations  had  been  made  directly 
by  Congress,  they  could  not  be  sanctioned  by  a  court  of 
justice  whose  duty  it  is  to  administer  the  law  according 
to  the  Constitution  of  the  United  States.''  There  was 
no  doubt,  but  that  ''the  United  States  have  no  right  to 
interfere  with  the  internal  and  domestic  trade  of  a 
State Undoubtedly,  the  United  States  au- 
thorities may  take  proper  measures  to  prevent  trade  or 
intercourse  with  the  enemy." 

Nevertheless,  "a.  civil  war  or  any  other  war,  does  not 
enlarge  the  powers  of  the  Federal  Government  over  the 
States  or  the  people  beyond  what  the  compact   has, 

given  to  it  in  time  of  war Nor  does  a  civil 

war,  or  any  other  war,  absolve  the  judicial  department 
from  the  duty  of  maintaining,  with  an  even  and  firm 
hand,  the  rights  and  powers  of  the  Federal  Government 
and  of  the  States,  and  of  the  citizens,  as  they  are  written 
in  the  Constitution,  which  every  judge  is  sworn  to 
support."  The  aged  justice,  again,  insisted  against  the 
truth  of  the  saying:  '^ inter  arma,  leges  silent.'' 

The  last  decision  which  is  known  to  have  been  given 
by  Taney  was  one  in  the  Circuit  Court  at  Baltimore, 
on  June  3,  1863,  in  the  case  of  ''The  Claimants  of  a 

*i  Appleton's  American  Annual  Cyclopedia,  1863,  p.  202. 


ROGER  BROOKE  TANEY  513 

large  lot  of  merchandise  versus  the  United  States.  "^^ 
The  goods  had  been  seized  by  the  Provost  Marshal  in 
October,  1862,  after  the  persons  from  whom  they  had 
been  taken,  had  ''been  seduced  and  betrayed  into  the 
purchase  of  the  goods  by  the  Provost  Marshal's  officers, " 
as  Taney  bluntly  put  the  matter.  The  agent  of  the 
Provost  Marshal  had  wormed  himself  into  the  confidence 
of  the  family  of  one  of  the  owners  of  the  goods,  had 
exhibited  forged  permits  and  clearances,  had  placed 
in  the  carpet  bag  of  his  supposed  associate  letters  ad- 
dressed to  persons  residing  in  the  South,  and  had  in- 
duced him  to  load  the  goods  on  a  schooner  with  the 
view  of  carrying  them  from  North  Point  on  the  Patapsco 
River  to  Virginia.  The  agent  went  with  him,  until  the 
vessel  was  overhauled  and  stopped  by  a  Federal  tugboat. 
Taney  "could  recall  no  similar  case  in  the  jurisprudence 
of  this  country  or  England. "  He  ''could  see  no  possible 
benefit  to  accrue  to  the  government  from  such  a  seizure 
that  would,  in  any  way,  compare  with  the  great  evil 
that  would  arise  from  a  court  of  justice  countenancing 
such  conduct  by  a  condemnation  of  the  goods.  It 
would  encourage  officers  to  betray  the  weak  and  im- 
prudent into  all  sorts  of  violation  of  law  and  would 
be  demoralizing,  in  the  extreme,  to  the  officers  them- 
selves."  He  was  at  a  "loss  to  see  how  any  court  of 
justice  could  condemn  property  under  the  circumstances 
of  this  seizure,  unless  the  means  employed  be  also  coun- 
tenanced." The  parties  who  claimed  the  goods  came 
"from  the  South  and,  perhaps,  intended  to  return  on 
the  first  favorable  opportunity;"  but  they  had  not 
engaged  in  any  illicit  trade  previously  and  the  goods 
"were  not  of  a  hostile  character,  tending  to  aid  or  arm 
those    in    rebellion   against   the    government."     In  his 

<2  Tyler,  p.  436. 


514  ROGER  BROOKE  TANEY 

fierce  indignation,  Taney  denied  that  the  goods  were, 
"at  the  time  of  the  seizure,  proceeding  from  Baltimore 
to  Virginia.  The  claimants  may  have  desired  to  carry 
them  there  and  may  have  thought  they  were  going 
there,"  but  "the  substantial  fact  is" — and  after  that 
fact  Taney  ever  sought — "that  they  were  going  to 
Marshal  McPhail's  office. "  The  law  required  that  both 
the  goods  and  the  vessel  carrying  them  be  forfeited,  and 
this  "vessel  belonged  to  the  Government  officers!" 
He  summed  up  the  case,  by  saying  that  vessel  and 
"goods  were,  although  unknown  to  the  claimants,  in 
the  custody  and  control  of  the  Government  officers  all 
the  time,  and  cannot  be  condemned  under  the  libel  in 
this  case,  even  though  the  Court  should  overlook  the 
immorality  of  the  proceedings  and  look  only  at  the  case 
in  its  legal  aspect."  The  goods,  or  their  appraised 
value,  were  ordered  to  be  returned  to  the  claimants. 
As  Taney  said  there  was  no  probable  cause  for  the 
seizure,  the  Marshal  had  to  pay  the  "damages  and  costs 
sustained  by  the  claimants."  Tyler  rightly  styles 
these  acts  of  the  Federal  officers  as  "vile  practices," 
and  this  and  other  instances  of  these  practices  did  much 
to  cause  a  large  part  of  the  people  of  Maryland,  for  a 
whole  generation,  to  feel  hostility  to  the  Republican 
party,  which  was  in  control  of  the  Federal  Government 
during  the  Civil  War. 

There  was  a  pleasant  side  to  Taney's  life,  even  during 
the  troublous  days  of  the  war.  Yearly,  on  his  birthday, 
he  received  a  letter  of  compliment  from  the  Judges  of 
the  Court  of  Appeals  of  Maryland,  which  he  acknowl- 
edged with  the  more  pleasure,  because  he  considered 
that,  whatever  of  merit  he  had  achieved,  he  owed  to 

his  "training  in  the  Maryland  Courts  and  the  Maryland 
Bar.  "^3 

«  Tyler,  p.  449. 


ROGER  BROOKE  TANEY  515 

A  few  old  friends  were  still  left  and  to  one  of  them, 
Mr.  Justice  James  S.  Morsell  of  the  Circuit  Court  of 
the  District  of  Columbia,  Taney  sent  a  photograph,  as 
a  token  of  friendship,  in  the  spring  of  1863.^^  The 
recipient  was  the  last  of  the  friends  of  Taney's  youth  in 
Calvert  County,  who  "were  remembered  with  great 
warmth  of  affection"  by  him.  Judge  Morsell  was  the 
older  of  the  two.  ''They  were  born  in  the  same  neigh- 
borhood and  were  playmates,  hunting  wild  game  in  the 
woods,  and  fishing  and  bathing  in  the  streams  and  rivers 
of  their  native  county,"  and  were  linked  together  "by 
their  youthful  joys,"  as  Tyler  writes,  "in  an  enduring 
friendship."  Morsell,  in  his  note  of  acknowledg- 
ment of  the  photograph,  referred  to  the  "highly  prized, 
early,  and  long  continued  friendship,"  between  them. 

His  relations  with  the  officers  of  the  Supreme  Court 
were  very  pleasant,  so  that  Tyler  wrote,  some  seven 
years  after  Taney's  death,  in  his  somewhat  florid  style, 
that  "his  very  name  warms  their  hearts  and  brightens 

their  countenances Such  was  the  charm  of 

his  manner  that  every  newly  appointed  officer,  was,  at 
his  very  first  interview,  brought  to  regard  him  with 
affectionate  reverence."  As  a  proof  of  this  fact,  Tyler 
quoted  Ward  Lamon,^^  who  had  been  appointed  Marshal 
of  the  Court  by  President  Lincoln,  as  saying :"  Chief 
Justice  Taney  was  the  greatest  and  best  man  I  ever  saw. 
I  never  went  into  his  presence  on  business  that  his 
gracious  courtesy  and  kind  consideration  did  not  make 
me  feel  that  I  was  a  better  man  for  being  in  his  presence." 
So  too  Mr.  Meehan,  the  Librarian  of  the  Court, 
exclaimed:  "What  a  glorious  old  gentleman  the  Chief 
Justice  is!     He  always  treats  me  in  such  a  way  as  to 

44  Tyler,  p.  450. 

45  Page  448. 


516  ROGER  BROOKE  TANEY 

increase  my  respect  for  myself."  Tyler's  remark  upon 
these  speeches  is  that  there  was  a  notable  combina- 
tion in  Taney  of  ''such  an  iron  will,  such  a  determined 
purpose,  such  undaunted  courage,  and  all  the  heroic 
elements  of  character,"  w^ith  ''such  a  delicate  sentiment 
of  kindness,  manifested  in  his  courtesy."  The  biog- 
rapher found  the  "source"  in  "his  charity  of  heart  and 
his  high  breeding." 

Not  only  the  officers,  but  also  the  Associate  Justices 
of  the  Supreme  Court  venerated  him.  On  his  eighty- 
seventh,  and  last  birthday,  in  March,  1864,  when  he 
was  detained  at  his  home  by  indisposition,  he  was 
waited  upon,  in  a  body,  by  his  brethren,  who  paid  their 
respects  officially  to  him  and  "tendered  him  their 
congratulations  on  the  returning  anniversary  of  his 
birthdays."  Mr.  Justice  Wayne,  who  presided  in 
Taney's  absence  over  the  Court,  adjourned  the  session 
early  to  make  this  visit  with  his  associates  and,  after 
they  left  the  house,  the  officers  of  the  Court  with  several 
members  of  the  Bar  and  a  few  friends  waited  on  Taney, 
who  received  them  with  "urbanity  and  affability. "^^ 

Taney's  friend,  Severn  Teackle  Wallis,  who  was 
afterwards  his  eulogist,  wrote  him  annually  from  Balti- 
more on  these  birthdays  and  always  received  apprecia- 
tive replies  from  the  aged  judge.^^  In  1863,  after 
thanking  Wallis  for  his  sincere  and  cordial  approval  of 
his  conduct  and  praising  Wallis  for  his  course  of  opposi- 
tion to  the  National  authorities  which  had  led  to  an 
incarceration  in  Fort  Warren,  from  which  Wallis  had 
just  been  released,  Taney's  gloomy  feelings  led  him  to 
continue:  "At  my  advanced  age,  I  can  hardly  hope  to 
see  the  end  of  the  evil  times  on  which  we  have  fallen. 

46  Tyler,  p.  455. 

4^  Tyler,  pp.  458,  459. 


ROGER  BROOKE  TANEY  517 

But  I  trust  you  will  live  to  see  the  civil  power  restored 
in  Maryland  to  its  supremacy  over  the  military  and  the 
homes  and  firesides  of  its  citizens  once  more  safe  under 
the  protection  and  guardianship  of  law."  A  year  later 
Taney's  gloom  had  deepened,  yet  curiously  enough,  he 
never  quite  lost  hope  of  the  Republic  and  so  he  wrote : 

I  have  not  only  outlived  the  friends  and  companions  of  my  early 
life;  but,  I  fear,  I  have  outlived  the  Government  of  which  they  were 
so  justly  proud,  and  which  has  conferred  so  many  blessings  upon 
us.  The  times  are  dark  with  evil  omens  and  seem  to  grow  darker 
every  day.  At  my  time  of  life,  I  cannot  expect  to  live  long  enough 
to  see  these  evil  days  pass  away;  yet  I  will  indulge  the  hope  that 
you,  who  are  so  much  younger,  may  live  to  see  order  and  law  once 
more  return,  and  live  long  enough  to  enjoy  their  blessings. 

After  all,  there  was  an  ineradicable  root  of  Federalism 
in  the  man  and  his  hope  for  Wallis  found  abundant 
fulfillment,  for  the  latter  lived  until  1894. 

Another  Baltimore  friend,  David  M.  Ferine,  also 
corresponded  with  him  and,  from  time  to  time,  enter- 
tained him  at  his  country  seat  near  Baltimore.  On 
the  eve  of  his  birthday  in  1862,  Taney  wrote  Ferine^ ^ 
and  in  the  letter,  with  great  piety,  expressed  his  "grati- 
tude to  the  Giver  of  all  good,  that  I  have  been  so  long 
spared  to  those  I  love  and  that  age  has  not  been  without 
true  and  tried  friends  to  comfort  and  solace  it.  And 
among  the  foremost  in  that  number,  I  need  not  say  how 
sensible  I  am  of  your  constant  and  unwearied  friendship 
for  now  nearly  forty  years,  and  never  forget  the  proofs 
you  have  given  of  it,  in  the  darkest  and  most  sorrowful 
scenes  of  my  long  life."  He  had  been  saddened  by 
the  misery  which  had  so  suddenly  come  upon  the 
United  States;  but,  though  he  saw  no  immediate  hope 

«  Tyler,  p.  452. 


518  ROGER  BROOKE  TANEY 

of  an  improvement  in  affairs,  he  serenely  continued: 
*' God's  will  be  done;  and  we  must  meet  it  with  the  best 
faith  of  Christians  and  the  firmness  and  courage  of 
manhood." 

A  year  and  a  half  later,^^  his  letter  to  Ferine  was  still 
gloomier.     He  never  recovered  from  the  slight  put  upon 
the  Judiciary  by  the  disregard  of  his  opinion  in    the 
Merryman  case,   and  the  downfall  of  slavery,  or   the 
brightening  prospect  of  Union  success  came  but  little 
into  his  vision  when  he  wrote.     He  had  been  very  ill  and 
had  suffered  from  the  depression  which  naturally  comes 
to  an  ill  man,  especially  an  aged  one.     He  was  again  in 
his  office,  but  had  not  left  his  home.     He  felt  as  ''well 
as  usual,  but  not  so  strong  "  as  before  his  illness.     During 
the  hot  season,  he  wrote  that  he  had  "often  thought  of 
the  pleasant  days  I   have  passed   at  your  house,   en- 
joying the  fresh  country  air  and  walking  over    your 
grounds.     But  my  walking  days  are  over."     He   had 
no  thought  however,  of  resigning  his  position  and  hoped 
to  "linger  along  to  the  next  term  of  the  Supreme  Court. 
Yet  very  different,  however,  that  Court  will  now  be 
from  the  Court  as  I  have  heretofore  known  it.     Nor  do 
I  seen  any  ground  for  hope  that  it  will  ever  again  be 
restored  to  the  authority  and  rank  which  the   Con- 
stitution intended  to  confer  upon  it.     The  supremacy  of 
the  military  power  over  the  civil  seems  to  be  established ; 
and  the  public  mind  has  acquiesced  in  it  and  sanctioned 
it.     We  can  pray  for  better  times  and  submit  with 
resignation  to  the  chastisement  which  it  may  please 
God  to  inflict  upon  us."     His  prognostications  as  to 
the    future   of   the   Supreme    Court   were    fortunately 
untrue  and  the  next  generation  saw  that  tribunal  re- 
stored to  its  pristine  position  of  dignity  and  influence. 

"  On  August  6,  1863,  Tyler,  p  454. 


ROGER  BROOKE  TANEY  519 

When  his  eighty-seventh  birthday  came,  he  wrote 
Ferine,  thanking  him  for  his  letter  and,  with  more 
cheerfulness,  told  him  that:  "At  the  age  of  eighty-seven, 
I  cannot  hope  to  see  many  more  birthdays  in  this  world 
and  can  hardly  hope  to  live  long  enough  to  see  more 
peaceful  and  happier  times.  You  I  trust,  who  are  so 
much  younger  than  I  am,  will  be  spared  to  see  and 
enjoy  them."^^  Mr.  Perine's  son,  Mr.  E.  Glenn  Fer- 
ine, sent  him  a  carved  walnut  cigar  box  as  a  birth- 
day gift  in  1864,  and  Taney's  graceful  note  of  thanks — a 
model  of  such  an  epistle,  told  the  donor  that  Taney 
**took  much  pleasure  in  showing  your  birthday  present 
to  the  Judges  of  the  Supreme  Court  and  other  friends, 
who  did  me  the  honor  of  paying  me  a  birthday  visit, 
and  having  its  beauty  and  taste  admired  by  them  all." 
His  courtesy  and  thoughtfulness  thus  lasted  until  the 
very  end  of  his  life.^^ 

Several  months  later,  on  June  24,  1864,  he  sent  his 
photograph  to  his  niece,  Mrs.  Alice  Key  Fendleton, 
wife  of  Hon.  George  H.  Fendleton,  together  with  a 
graceful  note.  With  the  photograph,  he  enclosed  a 
sentiment  which  seemed  to  him,  "although  applicable 
to  any  situation  in  life, "  to  be  "especially  fit  to  be  borne 
in  mind  by  every  Judge,  who,  in  the  present  time,  is 
called  on  to  administer  and  maintain  the  law.  "^^  He 
remembered  she  had  studied  Latin  and  so  copied,  in 
the  original,  four  lines  from  the  third  Ode  in  the  third 
Book  of  Horace's  Odes: 

Justum  et  tenacem  propositi  virum — 
Non  civium  ardor  prava  jubentium, 
Non  vultus  instantis  tyranni 
Mente  quatit  solida. 

60  Tyler,  p.  455. 

51  Tyler,  p.  456. 

52  Tyler,  p.  465. 


520  ROGER  BROOKE  TANEY 

In  writing  Tyler  concerning  her  uncle,  Mrs.  Pendleton 
spoke  of  the  ''beauty  of  his  life  and  character"  and  said 
that  the  sentiment  ''has  a  noble  signification,  as  emanat- 
ing from  him.  So  truly  is  it  the  precept  and  example 
of  his  life.  "^3 

To  the  end  of  his  life,  Taney  was  a  "constant  reader 
of  current  literature"  and  enjoyed  novels.  The  British 
Quarterly  Reviews  and  Blackwood' s  Magazine,  he  read 
"with  singular  interest."  Tyler  informs  us  that^^ 
"newspapers,  on  all  sides  of  politics,  he  had  read  to  him 
daily.  He  had  been  fond  of  Macaulay's  "History  of 
England"  and  of  Campbell's  "Lives  of  the  Chief  Jus- 
tices" and  of  the  "Lord  Chancellors  of  England." 
Shakespeare  was  one  of  his  favorite  authors. 

In  one  of  his  later  illnesses,  Samuel  Tyler  sat  up  with 
him  at  night. ^^  After  Taney  was  convalescent,  when- 
ever Tyler  would  come  to  see  him,  Taney  would  lie  in 
bed,  smoking  a  cigar,  and  talk  with  Tyler  "to  such  a 
late  hour,  that  one  of  his  daughters  would  come  into  the 
room  to  break  up  the  conversation.  The  topics  of 
conversation  were  such  as  showed  as  great  familiarity 
with  every  day  life  as  any  gentleman  at  any  age  would 
possess."  Dr.  Grafton  Tyler,  for  many  years  the  Chief 
Justice's  physician,  remarked  often  that  Taney  was 
"like  a  disembodied  spirit;  for  that  his  mind  did  not  in 
any  degree  participate  in  the  infirmities  of  the  body." 
Whenever  friends  came  in  to  see  him,  he  "inquired 
about  everything  that  was  going  on."^^  During  the 
autumn  of  1864,  he  gradually  failed  in  health  and  died, 
on  October  12,  in  his  eighty-eighth  year.     Friends  car- 

w  Tyler,  p.  467. 
w  Tyler,  p.  485. 
M  Tyler,  p.  457. 
66  Tyler,  p.  484. 


ROGER  BROOKE  TANEY  521 

ried  his  body  from  Washington  to  the  cemetery  of  the 
Jesuit  Novitiate  in  Frederick,  where  they  placed  it  beside 
that  of  his  mother  for  whom  he  kept  his  love  to  the 
very  last.^^  Two  members  of  the  Frederick  Bar,  to 
whom  Tyler  dedicated  Taney's  life,  Judge  Richard  H. 
Marshall  and  James  M.  Coale,  with  the  consent  of 
Taney's  family,  placed  over  Taney's  grave  a  plain  flat 
stone — a  suitable  memorial  of  the  simple  life  of  the 
jurist. ^^ 

"  Tyler,  p.  485. 

»8  Scharf's  Chron.  of  Baltimore,  p.  631. 


CHAPTER  XVI 

After  His  Death 

James  Schouler  has  written^  that  Taney  was  "an 
able  lawyer,  an  honorable  judge,  an  austere,  upright 
man,  to  whose  virtues  and  talents  it  was  impossible  to 
draw  close  attention,  or  to  do  full  justice,  while  present 
passions  raged."  It  is  surprising,  however,  how  spon- 
taneous and  heartfelt  a  tribute  was  paid  him,  imme- 
diately upon  the  end  of  his  life. 

On  the  day  after  his  death,  William  Price,  Esq., 
eulogized  him  in  the  United  States  District  Court  at 
Baltimore,  saying:  *'It  was  a  privilege  to  be  employed 

with  him  in  the  trial  of  a  case  in  Court In 

referring  to  the  English  authorities  then  most  quoted, 
he  would  direct  me  to  pass  over  the  opinions  of  Kenyon 
and  Grose  and  Ashurst  and  read  what  Buller  said.  He 
had  great  respect  for  the  views  of  Lord  Mansfield  and 
thought  Heath  a  very  able  judge."  In  one  case, 
Price  *' found  an  authority  directly  with  us  in  all  its 
features,  but  I  found  also  that,  by  a  later  decision,  it 
had  been  overruled  and  I  proposed  to  read  the  authority 
and  rely  on  it,  believing  that  the  opposing  counsel  would 
fail  to  discover  the  later  decision.  'But  would  you,' 
said  he,  'impose  a  spurious  authority  upon  the  Court?'" 
Price  continued. 

1  Schouler,  History  of  the  U.  S.,  vol.  VI,  p.  527.  He  was  a  Union  soldier 
during  the  Civil  War  and  wrote  elsewhere  of  Taney,  that  he  had  "many  ad- 
mirable traits  of  character — being  learned  in  the  law,  painstaking,  upright,  and 
full  of  dignity."  He  could  take  ''admiration  unflinchingly,"  but  was  "wanting 
in  the  flow  of  healthy  blood" — a  rather  mystifying  expression.  V  History, 
377. 

522 


ROGER  BROOKE  TANEY  523 

Although  dignity  was  a  part  of  his  nature,  yet  he  was  one  of 
the  most  genial  persons  I  ever  knew.  His  acquisitions  in  general 
literature  were  not  exhaustive,  but  there  were  certain  books  he 
had  read  with  great  interest  and  which  he  talked  about  with  pleas- 
ure. Among  them  was  Boswell's  Life  of  Johnson,  which  he 
frequently  declared  to  be  the  most  delightful  book  that  ever  was 
written.  He  would  repeat  the  sayings  of  the  sage  and  those  which 
were  most  surly  seemed  to  please  him  best. 

He  had  not  a  particle  of  what  men  call  genius.  His  mind  was 
made  up  of  pure  logic  and  whether  before  the  Court  or  Jury,  he  had 
always  something  to  prove  and  every  word  he  uttered  contributed 
to  that  end.  His  style  of  speaking,  though  of  the  very  best 
English,  was  simple  and  devoid  of  ornament.  There  was  an  intense 
sincerity  in  his  manner,  his  powers  of  persuasion  being  equal 
to  those  of  any  person  I  have  ever  heard.  Mr.  Wirt  used  to  say^ 
that  he  feared  that  angelic  manner  of  his,  more  than  all  his  other 
attributes.  His  power  with  the  juries,  which  was  very  great, 
lay,  as  it  always  appeared  to  me,  in  his  extraordinary  faculty  of 
so  grouping  and  collating  his  facts  as  to  impart  to  the  circumstance 
which  he  chose  to  make  the  pivot  of  his  argument  an  exaggerated 
signification  from  its  position  and  the  new  relations  it  was  made 
to  bear  to  the  other  facts  of  the  case.  Minor  circumstances  were 
made  to  tell  for  more  than  their  value,  by  the  position  in  which 
he  placed  them. 

Particular  expressions  of  great  force  would  at  times  fall  from 
him.  .  .  .  In  defending  a  person  charged  with  an  assault,  who, 
though  first  assailed,  had,  as  it  was  alleged,  so  used  his  privilege 
of  self  defence  as  to  become  a  trespasser  ah  initio ,  he  said:  ''  Gentle- 
men, if  a  man  have  a  head  like  a  post,  you  must  hammer  him  like 
a  post."    This  sentence  comprised  the  entire  argument. 

Judge  William  B.  Giles,  in  his  response,  stated  that, 
when  he  went  upon  the  bench  in  1853,  he  was  a  com- 
parative stranger  to  Judge  Taney,  but  that,  ''in  all 
our  intercourse,  I  have  received  from  him  the  greatest 

2  This  saying  is  also  attributed  to  William  Pinkney. 


524  ROGER  BROOKE  TANEY 

kindness,  and  consideration,  and  cordiality,  which  won 
for  him  my  warmest  veneration  and  esteem  .  .  . 
I  have  never  known  a  purer,  or  better  man,  one  who 
loved  his  country  more,  or  whose  heart  was  more  alive 
to  every  warm  and  generous  feeling  of  our  nature.  "^ 
On  the  day  following,  October  14,  a  general  meeting  of 
the  Baltimore  Bar  was  held  in  the  Superior  Court  Room,^ 
more  numerously  attended  than  any  former  "profes- 
sional assemblage  ever  held"  in  the  City.  Resolves 
were  offered  by  Severn  Teackle  Wallis,  Esq.,  and  sec- 
onded by  the  eminent  lawyer,  William  Schley,  a  native 
of  Frederick,  who  had  well  known  Taney's  early  career 
as  a  lawyer.  In  the  course  of  his  speech,  Mr.  Schley 
said  that, 

As  a  member  of  society,  he  was  always  distinguished  for  his 
exemplary  life  and  conversation.  He  was,  indeed,  a  high-bred 
Maryland  gentleman  and  no  one,  who  was  brought  into  inter- 
course with  him,  could  have  been  otherwise  than  charmed  by  his 
urbanity,  his  courtesy  and  his  kindness.  There  was  no  mani- 
festation on  his  part  of  conscious  superiority.  He  exacted  no 
deference,  no  homage,  no  reverence.  These  were  accorded  to  him 
spontaneously. 

*  These  proceedings  and  those  of  the  following  day  were  printed  in  a 
pamphlet. 

The  Baltimore  Alumni  Association  of  Dickinson  College  in  1910  printed  a 
pamphlet  in  memory  of  Taney,  containing  a  photogravure  of  the  portrait  of 
him  painted  by  Richard  Blossom  Farley,  which  now  adorns  the  wall  of  Bosler 
Memorial  Hall  in  the  College.  The  pamphlet  contains  the  address  of  J.  Henry 
Baker,  Esq.,  of  Baltimore,  at  the  presentation  of  the  portrait  to  the  Dickinson 
in  1908. 

The  present  writer  prepared  a  sketch  of  Taney's  life  which  was  read  before 
the  P.  L.  Club  in  Baltimore  in  December,  191 7,  the  Maryland  Historical  Society 
in  April,  1918,  and  the  Maryland  Bar  Association  at  Atlantic  City  in  June,  1918, 
and  which  is  printed  in  the  Proceedings  of  the  Association  for  that  year. 

*  Scharf,  "Baltimore  City  and  County,"  713.  These  proceedings  were 
printed  in  pamphlet  form  contemporaneously. 


ROGER  BROOKE  TANEY  525 

He  was  generous  to  a  fault.  He  gave  freely  and  cheerfully 
with  an  open  hand  and  willing  heart  out  of  his  limited  means. 

He  was  deeply  grounded  in  the  elements  of  the  law,  from  early 
and  close  study  and  familiar  with  the  writings  of  eminent  jurists. 
Although  he  carefully  examined  all  decided  cases,  yet  he  never 
based  his  decisions  (except  in  matters  of  practice)  on  the  authority 
of  another's  opinion,  unless  a  controlUng  decision,  without  it  had 
the  concurrence  of  his  own  approval  and  judgment,  and  it  is 
noticeable,  in  reading  his  opinions,  that  he  seldom  refers  to  ele- 
mentary writers,  or  even  to  judicial  decisions.  He  drew  from  the 
accumulated  fund  of  his  own  treasury  of  legal  learning  and  he  was 
self-reliant,  because,  with  laborious  industry,  he  had  gathered 
largely  in  early  life  and  had  winnowed  the  chaff  from  the  substance 
and  had  only  garnered  the  latter. 

He  was  eminently  practical,  he  understood  his  causes,  prepared 
for  the  trial  of  every  case  in  which  he  was  engaged,  at  any  sacrifice 
of  personal  convenience  and  comfort,  and,  in  his  forensic  efforts, 
was  stimulated  more  by  an  anxious  desire  to  perform  his  duty  to 
his  client  than  by  considerations  of  personal  distinction. 

He  had  a  temper,  not  merely  quick,  but  naturally  fierce,  and 
yet  his  heart  was  full  of  kindness,  benevolence,  and  generosity  and 
he  was  even  able  to  forgive  his  political  enemies — he  had  no 
others — and  died  in  charity  with  all. 

Reverdy  Johnson,  the  leader  of  the  American  bar, 
followed  Schley  and  referred  to  Taney  as  presiding  over 
the  Supreme  Court,  ''with  a  courtesy,  dignity,  and 
ability  that  challenged  the  admiration  of  all  who  were 
familiar  with  its  proceedings,  or  studied  its  judgments." 
He  possessed  "all  the  requisite  learning"  and  "the 
politeness  of  manner,  which  is  so  important  to  a  satis- 
factory administration  of  the  functions  of  judge.  In 
early  life,  a  diligent  student  at  the  bar,  having  a  diligence 
that  never  tired,  with  a  mind  singularly  accurate  and 
at  the  same  time  comprehensive,  with  an  elocution 
remarkably   lucid   and   an   integrity   private   and   pro- 


526  ROGER  BROOKE  TANEY 

fessional,  that  no  man  of  character  ever  ventured  to 
question,  from  the  moment  he  assumed  the  judicial 
station,  he  inspired  universal  confidence." 

Johnson  had  differed  from  Taney  in  politics  and 
Taney  had  been  a  "decided  politician,"  but,  when  he 
was  nominated  as  Chief  Justice,  Johnson  felt  that  he 
would  be  "governed  solely  by  justice  and  law"  and  "was 
not  disappointed  in  this  expectation."  "During  his 
entire  judicial  career,  no  man  can  say  with  truth  that 
his  integrity  was  ever  for  a  moment  sullied,  or  his 
judgments  influenced  by  any  other  than  the  most 
elevated  and  legitimate  considerations.  So  unerring 
was  his  mind,  so  discriminating  his  thought,  and  so 
full  his  research  (a  research  wonderful,  when  we  re- 
member his  own  feeble  state  of  health)  that  it  hap- 
pened in  very  few  instances  that  his  brethren  differed 
from  him  and  in  yet  fewer  that  his  judgments  on  cir- 
cuit were  reversed." 

No  judge  "possessed  greater  capacity  nor  manners 
more  admirably  fitted  to  make  the  practice  of  our  pro- 
fession pleasant  and  instructive,  or  who  ever  admin- 
istered justice  with  more  absolute  impartiality." 

Judge  Merrick  spoke  next,  remarking  that  the  reputa- 
tion of  Taney's  "talents  and  his  inflexible  adherence  to 
what  his  judgment  approved  and  his  private  worthy 
compelled  him  into  public  stations,  which  his  modesty 
had  not  sought."  Reference  was  made  to  "His  counte- 
nance, so  calm,  so  patient,  so  attentive,  and  to  the  deep 
light  of  his  tranquil  eye,  which  seemed  to  reflect  back 
from  the  inner  intelligence,  illumination  upon  the  argu- 
ments which  were  addressed  to  the  court,  and  to  the 
even  hand  with  which  he  held  the  scales  of  justice." 

Andrew  Sterrett  Ridgely  had  been  a  "frequent  and 
always  kindly  received  visitor  at  Taney's  unostenta- 


ROGER  BROOKE  TANEY  527 

tiously  hospitable  board  and  by  his  truly  happy  and 
cheerful  fireside. ' '  He  remembered  the  ' '  kind  and  benig- 
nant face"  of  Mrs.  Taney,  "that  noble  hearted  wife  and 
mother."  He  recalled  also  the  "judge's"  gracious 
urbanity  and  kindly  courtesy"  and  his  feebleness,  which 
compelled  him,  "for  years  past,  to  recline  upon  the 
judgment  seat  when  administrating  justice." 

Judge  Martin  of  the  Superior  Court,  who  presided  at 
the  meeting,  called  attention  to  Taney's  "perspicuity," 
as  the  "leading  trait  in  his  mental  power."  "There 
was  no  glare  about  his  intellect,  but  it  was  perfectly 
luminous,  so  that,  whether  you  admitted,  or  disputed 
his  proposition,  it  was  absolutely  impossible  not  to 
understand  what  he  intended  to  communicate."  Judge 
Martin  bore  testimony  to  Taney's  "bearing  and  deport- 
ment as  a  judge,"  as,  ''at  all  times,  so  graceful  and 
urbane,  so  conciliatory  and  yet  so  fine"  and  to  "his 
tone"  which  was  "so  elevated  and  refined." 

The  most  wonderful  testimonial  to  Taney,  however, 
is  to  be  found  in  the  proceedings  of  the  meeting  of  the 
members  of  the  Bar  of  the  First  Circuit  held  at  Boston, 
Three  days  after  Taney's  death,  on  Saturday,  October 
15,  at  a  preliminary  meeting  a  committee  was  appointed, 
composed  of  Benjamin  R.  Curtis,  formerly  Associate 
Justice  of  the  Supreme  Court,  Caleb  Cushing,  formerly 
Attorney  General  of  the  United  States,  Richard  H. 
Dana,  Jr.,  the  United  States  District  Attorney,  and 
Sidney  Bartlett,  Chairman  of  the  Meeting,  to  prepare 
resolutions.  The  Committee  reported  to  an  adjourned 
meeting,  on  Monday  the  seventeenth^  and  the  report, 
which  was  unanimously  adopted,  expressed  "admira- 
tion and  reverence  for  the  preeminent  abilities,  profound 
learning,    incorruptible    integrity,    and    signal    private 

*  Tyler,  p.  508;  Curtis's  Misc.  Writings,  II,  p.  336. 


528  ROGER  BROOKE  TANEY 

virtues  exhibited  in  the  long  and  illustrious  judicial 
career  of  the  late  lamented  Chief  Justice  Taney." 

Then  Curtis  rose  to  speak.  He  had  strongly  differed 
from  Taney  in  the  Dred  Scott  decision  and  he  had  later 
supported  him  in  the  Merryman  Case.  No  man  in  New 
England  was  abler  and  none  of  them  knew  Taney  better. 
The  major  part  of  his  address  has  been  previously 
mentioned. 

His  conclusion  was  that  "it  is  one  of  the  favors^  which 
the  providence  of  God  has  bestowed  upon  our  once 
happy  country,  that,  in  the  period  of  63  years,  this  great 
office  has  been  filled  by  only  two  persons,  each  of  whom 
has  retained,  to  extreme  old  age,  his  great  and  useful 
qualities  and  powers.  The  si;ability,  uniformity,  and 
completeness  of  our  national  jurisprudence  are,  in  no 
small  measure,  attributed  to  this  fact." 

The  Rev.  Dr.  Clover,  a  clergyman  of  the  Protestant 
Episcopal  Church,  preached  a  memorial  sermon 
upon  Taney  in  Springfield,  Illinois,  on  November 
6,  1864.^  He  had  known  the  Chief  Justice,  **in  the 
relations  of  social  intercourse,"  and  found  him  ''most 
exemplary."  "In  nothing  did  his  attractiveness  of 
character  more  appear  than  in  his  happy  and  affable 
manner,  coupled  with  the  most  graceful  and  dignified 
bearing,  which  rendered  his  society,  even  to  the  hum- 
blest, most  congenial  and  delightful."  A  close  student 
throughout  his  whole  life,  Taney  spent  most  of  his  day 
in  his  library;  "but,  when  evening  came,  at  the  simple 
announcement  that  some  friend  was  in  the  parlor,  it 
mattered  not  whether  young  or  old,  distinguished  or 
obscure,  the  tall  form  of  the  old  gentleman  would  enter, 
and  the  marked  and  peculiar  features  of  his  face  light 

«  Tyler,  p.  515,  Curtis's  Misc.  Writings,  II,  p.  342. 
'  Tyler,  p.  468.     Peter   Lewis  Clover  entered  the  ministry  at  Taney's 
suggestion. 


ROGER  BROOKE  TANEY  529 

Up  and  beam  with  a  pleasant  smile  of  welcome  which  no 
words  can  express." 

A  year  later,®  General  Robert  E.  Lee  wrote  Mr. 
Tyler  that  *'my  memory  is  full  of  the  pleasure  and 
improvement  I  always  enjoyed  in  his  company  and  in 
my  intercourse  with  his  charming  and  intellectual 
family." 

The  memorial  meeting  of  the  Bar  of  the  Supreme 
Court  occurred  on  December  6,  1864,  upon  the  re- 
assembling of  that  Tribunal.®  Jonathan  Meredith  of 
Baltimore  was  made  Chairman  and  said  that,  as  rep- 
resentative of  the  next  generation  of  lawyers  to  that 
of  Taney,  he  desired  to  "mingle  their  sorrow  with  the 
sorrow  of  the  whole  American  Bar,  for  the  loss  of  a 
deeply  read  and  profoundly  learned  lawyer,  of  an  elo- 
quent advocate,  of  a  dignified,  enlightened  and  upright 
judge,  and  of  a  Christian  gentleman,  whose  purity  of 
life  was  high  beyond  all  reproach."  A  Committee, 
having  the  Hon.  Thomas  Ewing  of  Ohio  as  its  chairman, 
was  appointed  to  present  resolutions,  and  in  making 
their  report,  Ewing  said:  *'I  for  one,  knew  him  from 
his  first  accession  to  the  Bench.  I  have  been  present 
at  every  term  when  he  has  presided  in  this  Court  since 
that  time,  from  the  first  to  the  last;  and  I  can  bear 
ample  testimony  to  his  courtesy,  to  his  kindness,  to 
his  consideration  of  the  members  of  the  Bar,  to  his 
judicial  capacity  and  to  his  integrity  as  a  judge."  The 
report  referred  to  Taney,  as  a  man  "of  spotless  and 
benevolent  life,"  as  "the  model  of  a  good  man  and  a 
Christian  gentleman. "  "  Profoundly  learned  in  the  law 
and  naturally  gifted  with  a  clear,  direct,  and  logical 
mind,  he,  nevertheless,  listened  for  instruction  from  the 

8  November  14,  1865.  Tyler,  p.  467. 

9  Tyler,  p.  486. 


530  ROGER  BROOKE  TANEY 

humblest  advocate  who  appeared  before  him  in  any 
case.  With  all  the  qualities  of  a  good  judge,  and  with 
the  natural  consciousness  of  his  superiority  to  ordinary 
men,  he  was  ever  attentive  and  useful  to  those  whose 
duty  brought  them  before  him  to  attempt  to  influence 
his  determination  as  a  judge,  and  none  who  knew  him 
could  doubt  that  his  conclusions  were  always  the  result 
of  conscientious  and  enlightened  study  and  reflection." 

Mr.  Stansberry  of  Ohio  then  spoke  of  "that  quiet 
dignity,  that  perfect  composure  and,  above  all,  that 
amiability  and  goodness  of  heart,"  for  which  Taney 
"was  so  distinguished."  For  more  than  a  quarter  of  a 
century  the  speaker  had  argued  cases  before  the  Su- 
preme Court  and  "that  long  experience"  gave  Stans- 
berry "confidence"  in  saying  that  Taney  "never 
failed  to  sustain  the  dignity  and  requirements  of  the 
of^ce."  Although  "he  had  long  passed  the  age,  when 
the  most  vigorous  show  signs  of  mental  decay,  his 
intellect  seemed  as  clear  as  ever." 

Reverdy  Johnson  spoke  as  a  member  of  the  Maryland 
bar,  and  as  one  who  knew  Taney  as  far  back  as  1815, 
when  Johnson  was  admitted  to  practice  at  the  Court 
of  Appeals.  He  had  enjoyed  Taney's  "confidence  and 
his  friendship,  almost  from  the  first,  "and  greatly  did" 
Johnson  "profit  from  it."  In  social  life,  Taney  "was 
as  attractive  as  he  was  instructive  and  eminent  in  pro- 
fessional life. "  He  was  esteemed  "as  much  as  a  man, " 
as  he  was  "admired  as  a  lawyer  and  a  judge."  "In 
everything  he  said  from  the  Bench  and  in  his  uniform 
conduct  as  its  chief,  all  saw  how  peculiarly  fitted  he  was 
for  his  high  office.  While  his  mind,  evidently,  was 
capable  of  mastering,  and  uniformly  mastered,  the  great, 
the  momentous,  judicial  questions  which  were  often 
before  him,  it  was  capable  of  solving  and  did  solve,  the 


ROGER  BROOKE  TANEY  531 

minutest  which  the  rules  of  practice  involved  and  upon 
which  the  correctness  of  so  much  of  a  judge's  usefulness 
depends.  "1^  Charles  O'Conor  of  New  York  followed 
Johnson  and,  in  the  language  of  perfervid  hyperbole, 
exalted  the  Chief  Justice,  speaking  of  his  clear,  vigorous 
and  perfectly  unimpaired  intellect,"  of  the  "strong 
emotions  of  affectionate  and  reverential  regret  at 
his  death  which  were  universally  felt,"  of  the  ''gracious 
dignity  of  his  bearing  and  the  stern  impartiality  of  his 
judgment."  On  December  7,  the  next  day,  Mr.  Ewing 
presented  these  proceedings  of  the  Bar  to  the  Supreme 
Court.  After  the  resolutions  were  read,  Mr.  Justice 
Wayne,  who  presided,  replied  to  them.^^  Wayne  had 
sat  on  the  bench  with  Taney,  throughout  the  w^hole  of 
the  latter 's  judicial  career  and  so  his  judgment  possessed 
great  value.  In  Taney's  "honorable  and  useful  life," 
he  was  early  "marked  to  be  one  who  could  be  relied 
upon  on  those  public  exigencies  which  require  firm 
character  and  statesmanlike  ability  to  manage  and 
control  successfully."  "By  temperament  he  was 
ardent.  Its  impulses,  however,  could  only  be  seen  in 
his  eyes  and  heard  in  fervent  language,  when  he  was 
excited  on  an  occasion;  but  he  was  never  impetuous  or 
vehement.  He  was  courteous  at  all  times  to  every  one 
without  affectation.  He  was  cautious  and  circumspect, 
without  being  indecisive,  and  the  resolves  of  his  pur- 
poses and  principles  were  habitually  expressed  in  words 
showing  the  sincerity  of  his  convictions,  without  offence 
to  any  who  thought  differently.  He  was  generous  and 
the  only  measure  of  his  liberalities  was  his  inability  to 

^°  In  a  letter  to  Tyler,  among  the  manuscripts  belonging  to  the  Maryland 
Historical  Society,  dated  July  14,  1871,  Johnson  wrote  that  he  could  not 
improve  upon  these  remarks.     (13  Md.  Hist.  Mag.  170.) 

"  Tyler,  p.  502;  2  WaUace  IX. 


532  ROGER  BROOKE  TANEY 

give  more.  *'  "His  control  of  himself  and  his  temper  was 
no  doubt  the  result  in  part  of  a  practical  philosophy, 
but  it  had  its  foundation  in  his  Christian  faith. "  Wayne 
felt  it  a  ''happy  occurrence"  that  two  such  men  as 
Marshall  and  Taney  "should  have  been  Chief  Justices 
in  succession  and  that  the  life  of  each  of  them  should  have 
been  so  prolonged." 

G.  W.  Searle  wrote  some  keen  sentences  concerning 
Taney  in  a  magazine  article,  which  appeared  in  that 
month. 12  "His  mind  was  comprehensive,  acute,  and 
logical;  not  brilliant,  imaginative,  or  impulsive."  "In 
reading,  he  was  highly  respectable,  but  he  relied  more 
upon  himself  than  his  library  for  correct  legal  conclu- 
sions. His  patience  in  listening,  his  calmness  in  de- 
ciding, his  candor,  care,  and  independence  in  judging, 
were  the  admiration  of  the  bar.  A  serious  and  hearty 
love  of  legal  truths  and  a  stern  and  unflinching  devotion 
to  legal  justice  were  the  great  moral  characteristics  of 
the  man."  In  the  conduct  of  his  court,  he  was  a  "pat- 
tern of  a  dignified  Chief  Justice.  There  was  no  pert 
colloquy  with  the  bar,  no  hasty  interruption  nor  rude 
suggestions.  All  was  calm,  deferential,  and  judicial. 
.  .  .  .  He  relied  on  principles,  rather  than  on 
precedent.  He  was  more  of  a  legal  philosopher  than  a 
case  lawyer.  His  legal  common  sense  was  worth  more 
than  a  library  of  text  books.  "^^  *' Notwithstanding  his 
ideas  as  to  the  right  of  property  in  man,  he  never 
adopted  the  Southern  theory  of  States  rights  as  a  means 
of  protecting  that  property;  on  the  contrary,  he  held  to 
the  ideas  of  Jay,  Marshall,  Kent,  and  Webster,  that  our 

12  December,  1864.     10  Nat.  Q.  R.  51. 

13  Searle  exaggerates,  p.  57,  in  saying  that  "By  whomsoever  delivered, 
the  opinions  bear  somewhat  of  the  impress  of  Taney's  mind  and  character." 

He  defends  the  Dred  Scott  Decision. 


ROGER  BROOKE  TANEY  533 

national  government  derived  its  powers  by  direct  grant 
of  the  people  themselves,  as  individuals,  and  that  it  was 
not  a  simple  confederation  of  Sovereign  States,  each  at 
liberty  to  judge  for  itself  when  the  compact  of  union  was 
violated  and  to  withdraw  at  its  pleasure,  or  discretion, 
or  even  on  its  own  view  of  necessity."  His  "constitu- 
tional system  was  a  reflex  of  that  of  Marshall,"  except 
as  to  the  United  States  Bank. 

In  the  conference  room,  Taney  * 'shone  with  especial 
lustre."  His  i^ifluence  was  "conservative  of  the  past, 
rather  than  adventurous  for  the  future."  "Equally 
free  from  servility  and  arrogance,"  he  was  a  "plain, 

feeble,  unpretentious  old  man The  affable 

and  winning  manners  of  the  man,  the  calm,  equable 
temper,  the  uniform  impartiality,  the  docility  and 
equanimity  of  his  temper  to  all  who  appeared  before  him 
are  amply  attested." 

"His  opinions  are  clear,  concise  and  well  written, 
but  they  do  not  indicate  the  elegant  polish  of  a  scholar, 
or  the  ripe  culture  of  a  man  of  letters. "  Scarle  referred 
to  Taney's  regular  habits.  His  life  was  abstemious, 
except  than  he  was  an  inveterate  smoker.  He  rose  early 
and  attended  Court  at  11  o'clock.  After  its  adjourn- 
ment, he  took  an  hour's  nap  and  then  was  wont  to  return 
to  his  labors  in  his  library.  He  found  "relaxation  in 
the  charms  of  domestic  life  and  in  agreeable  but  never 
ambitious  conversation."  "His  friendships  were  firm 
and  his  affections  strong." 

All  the  comments  made  upon  Taney  were  not  eulo- 
gistic. Horace  Greeley  wrote^^  that  Taney  "  had  long 
been  a  main  bulwark  of  slavery. "  "His  natural  ability, 
eminent  legal  attainments,  purity  of  private  character, 
fullness  of  years,  and  the  long  period  he  had  officiated  as 

"  2  Am.  Conflict,  p.  671. 


534  ROGER  BROOKE  TANEY 

Chief  Justice  caused  him  to  be  regarded  by  many  as  a 
pillar  of  the  State,  and  his  death,  at  this  moment, 
seemed  to  mark  the  transition  from  the  era  of  slavery 
to  that  of  Universal  Freedom.  Though  he  held  his 
office  and  discharged  its  functions  to  the  last,  it  was 
notorious  that  he  did  not  and  (with  his  views)  could  not 
sympathize  with  the  President  in  his  struggle  against 
red  handed  treason.  "^^ 

Charles  Sumner^^  never  lost  his  dislike  for  Taney. 
When  Lyman  Trumbull  on  February  23,  1865,  moved  to 
proceed  with  the  consideration  of  a  House  bill  to  provide 
a  bust  for  Taney,  Sumner  objected  and  compared  Taney 
to  the  ship  money  judges,  and  to  Judge  Jefferys. 
*' Search  the  judicial  annals  and  you  find  no  perversion 
of  truth  more  flgrant. "  Sumner's  objection  prevailed, 
and  no  bust  was  then  voted.  He  felt  that  in  the  ''un- 
righteous judgment  sustained  by  falsification"  in  the 
Dred  Scott  Case,  ''judicial  baseness  reached  its  lowest 
point." 

After  the  death  of  Sumner  and  of  Chief  Justice 
Chase,  in  1874,  busts  of  both  jurists  were  authorized  to 
be  placed  in  the  Supreme  Court  Room  by  the  unani- 
mous consent  of  Congress  and  without  debate. 

Though  he  was  diligent  in  the  practice  of  the  law  until 
he  was  59  years  old,  Taney  left  a  small  estate.  In  1871, 
an  unsuccessful  attempt  was  made  to  raise  a  fund  for  the 
support  of  his  daughters.  On  Feb.  11,  a  meeting  was 
held  in  the  Supreme  Court  Room  for  this  purpose, 
presided  over  by  the  Attorney  General,  A.  T.  Akerman  of 
Georgia.     William  M.  Evarts  and  Montgomery  Blair 

"  Greeley,  unjustly,  added:  "Originally  an  ultra  Federalist,  Slavery  had 
transformed  him  into  a  practical  disciple  of  Calhoun."  A  southern  view  of 
Taney  is  found  in  G.  L,  Christian's  address  in  Proceedings  of  Va.  Bar  Associa- 
tion for  1911,  p.  180. 

"  Works,  IX,  270.     Vide  Blaine,  I,  Twenty  Years  in  Congress,  137. 


ROGER  BROOKE  TANEY  535 

Spoke  in  favor  of  the  project.  Matthew  H.  Carpenter 
referred  to  "the  purity  of  Taney's  character,  the  fru- 
gaUty  and  temperance  of  his  life,  his  devotion  to  the 
duties  of  his  office,  from  which  he  never  cast  a  longing 
look  upon  other  places  or  preferments,  the  eminence  of  his 
abilities,  his  grasp  of  the  most  complicated  causes  and  the 
most  difficult  questions — all  are  remembered  with  pride." 
Young  lawyers  ''experienced  his  condescension  and 
courtesy,  his  willingness,  nay  eagerness,  to  relieve  their 
embarrassments  and  smooth  to  their  steps  the  rugged 
points  of  a  new  practice.  The  apparent  interest  with 
which  his  benevolent  face  was  always  turned  towards  a 
younger,  and  consequently  embarrassed,  advocate"  was 
never  forgo tten.^^ 

Senator  George  F.  Edmunds,  the  Nestor  of  American 
politics  and  law,  bore  testimony  that,  taking  Taney  *'all 
in  all,  through  his  long  career,  he  displayed  to  our  people 
a  purity,  a  skill,  an  industry,  that  has  given  renown  to 
our  most  permanent  institution,  that  of  the  judiciary, 
which  has  taught  our  people  reverence,  for  law,  for 
order,  a  lesson,  I  need  not  say,  most  eminently  nec- 
essary in  a  free  country." 

Clarkson  N.  Potter  remarked  that  Taney's  "private 
life  was  a  model  of  modesty,  of  kindness,  of  Christian 
courtesy."  Mr.  Justice  Miller  followed,  with  the  state- 
ment that  Taney  was  the  only  man  he  ever  knew  who 
showed,  at  a  very  advanced  age,  no  imperfection  in  his 
mental  faculties,  and  James  A.  Garfield  called  attention 
to  the  fact  that,  throughout  all  the  dissent  aroused  in 
the  North  West  by  the  Dred  Scott  decision,  no  word  was 
ever  uttered  against  Taney's  personal  character. 

In  1867,  the  General  Assembly  of  Maryland  appro- 
priated   $5000    for   a    statue   of   Taney  and,   in   1870 

1^  These  proceedings  were  printed  in  pamphlet  form. 


536  ROGER  BROOKE  TANEY 

increased  this  sum  by  an  additional  appropriation  of 
$10,000.1^  The  Commission  selected  the  Maryland 
sculptor,  William  H.  Rinehart,  to  execute  the  bronze 
statue  and  his  work  is  quite  successful.  Taney  is 
represented  as  in  his  old  age,  seated  and  clad  in  his 
robes  of  office.  The  strong  features  of  his  countenance 
are  clearly  delineated.  The  statue  was  placed  in  the 
State  House  Circle  at  Annapolis. ^^  On  December  10, 
1872,  the  statue  was  unveiled  and,  in  connection  with  the 
ceremonies,  Severn  T.  Wallis,  Esq.,  delivered  an  oration 
in  the  Senate  Chamber. ^^  Wallis  reminded  his  hearers 
that  the  pathway  of  a  great  judge  "does  not  lead  through 
the  realms  of  fancy,"  and  he  recalled  that. 

When  the  great  citizen,  whose  image  is  beside  us,  walked  in 
his  daily  walk  amid  our  reverence,  the  simple  beauty  of  his  private 
life  was  all  before  us.  We  can  recall  his  kindly  smile,  his  open 
hand,  his  gracious,  gentle  speech.  The  elders  of  our  generation 
will  remember  how  his  strong  nature  was  subdued  by  duty  and 
religion  to  the  temperance,  humility,  and  patience  which  we  knew. 
All  of  us  saw  and  wondered  how  domestic  sorrow,  the  toils  of  his 
station,  old  age,  infirmity  of  body,  ingratitude,  injustice,  per- 
secution, still  left  his  intellect  unclouded,  his  courage  unsubdued, 
his  fortitude  unshaken,  his  calm  and  lofty  resignation  and  en- 
durance descending  to  no  murmur,  nor  resentment 

It  was  a  life  of  patriotism,  of  duty,  and  of  sacrifice — a  life  whose 
aim  and  effect  altogether  were  to  be  and  do  and  bear  and  not  to 
seem. 

1*  The  Commission  to  expend  this  appropriation  consisted  of  Severn  Teackle 
Wallis  and  George  M.  Gill  of  Baltimore  City,  G.  Fred  Maddox  of  St.  Mary's 
County.  Charles  E.  Trail  and  Hugh  McAleer  of  Frederick  County,  James  T. 
Earle  of  Queen  Anne's  County,  and  Henry  Williams  of  Calvert  County. 

^^  The  proposal  was  made  that  Taney's  remains  should  be  brought  thither, 
but  his  own  directions  were  too  strong  and  too  definite.  A  replica  of  this  fine 
monument  has  been  made  and  placed  in  Baltimore  on  North  Washington 
Place,  at  the  foot  of  the  Washington  Monument. 

20  Wallis's  Works,  I,  p.  41  and  ff. 


ROGER  BROOKE  TANEY  537 

Wallls  then  turned  to  speak  of  Taney's  public  career. 

It  was  the  conviction  of  his  life  that  the  Government,  under 
which  we  lived,  was  of  limited  powers  and  that  its  constitution 

had  been  framed  for  war,  as  well  as  for  peace He 

believed  that  the  duty  of  the  judges  was  simply  to  maintain  the 
Constitution,  while  it  lasted,  and  if  need  be,  defend  it  to  the  death. 

He  had  lived  a  life  so  stainless  that  to  question  his  integrity 
was  enough  to  beggar  the  resources  of  falsehood  and  made  even 
shamelessness  ashamed.  He  had  given  lustre  and  authority,  by 
his  wisdom  and  learning,  to  the  judgments  of  the  Supreme  Tri- 
bunal and  had  presided  over  its  deliberations  with  a  dignity, 
impartiality,  and  courtesy,  which  elevated  even  the  adminis- 
tration of  justice. 

In  the  same  year,  1872,  Samuel  Tyler,  Esq.,  of  George- 
town, D.  C,  published,  through  John  Murphy  and 
Company,  a  ''Memoir"  of  Taney — a  stout  brown  octavo 
of  659  pages,  an  invaluable  source  to  anyone  studying 
the  Chief  Justice's  career.  Tyler  had  long  been 
Taney's  friend  and  Taney  himself  had  asked  that  Tyler 
write  this  book.  His  task  was  rendered  the  more 
difficult,  because^^  the  Chief  Justice  kept  no  copies  of  the 
letters  which  he  wrote  and,  with  very  few  exceptions, 
destroyed  those  which  he  received.  Moorefield  Storey, 
in  reviewing  the  book,  spoke  of  Taney  as  shown  to  be  a 
"man  of  great  simplicity^^  and  elevation  of  character, 
of  perfectly  honest  purpose,  and  of  unyielding  firmness, 
who  never  shrank  from  what  he  considered  his  duty, 
or  suffered  unworthy  considerations  to  affect  his  judg- 
ment— a  loyal,  just,  and  upright  gentleman  in  the  best 
sense,  in  many  respects  a  great  man;  but,  though  an 
able  lawyer  and  an  admirable  judge,  lacking  the  intellec- 

21  Tyler,  p.  X.  Information  from  Jno.  Mason  Campbell,  Taney's  son-in- 
law, 

22  116  North  American  Review,  January,  1873,  p.  194. 


538  ROGER  BROOKE  TANEY 

tual  breadth  which  is  a  necessary  element  of  greatness. 
The  absence  of  all  pettiness  in  his  nature  is  very  strik- 
ing."  It  was  his  misfortune,  upon  two  ''conspicuous 
occasions,  to  incur  the  bitter  hate  of  a  powerful  political 
party." 

A.  R.  McDonough,  reviewing  the  same  book,^^  stated 
that  it  was  Taney's  misfortune  *'to  be  brought  by  the 
faithful  discharge  of  his  duty  into  opposition  to  the 
prevailing  sentiment  of  his  countrymen  at  a  period  of 
intense  national  excitement.  His  unpopular  performance 
of  a  high  conservative  function —  .  .  .  incurred  a 
tempest  of  aspersions,  which  time  and  reflection  are 
only  beginning  to  dispel."  The  clamor  against  his 
removal  of  the  deposits  was  neither  "popular  nor 
generous."  He  deserved  praise,  rather  than  blame,  for 
his  share  in  that  contest.  ''As  a  strong,  calm,  and  pure 
man,  filling  blamelessly  the  highest  station  in  the  most 
troubled  period  of  the  national  life,  Taney  will  always 
remain  one  of  the  most  venerable  and  interesting  figures 
in  the  history  of  the  country." 

Nearly  ten  years  later,  in  1881,  Clarkson  N.  Potter 
delivered  an  address  upon  Taney  before  the  American 
Bar  Association. 24  He  compared  Marshall  with  Taney 
and  found  that  each  had  been  a  prominent  and  leading 
man,  before  he  became  Chief  Justice,  each  exercised  a 
controlling  influence  over  the  Court,  each  was  a  man 
of  the  highest  personal  integrity,  and  each  had  a  certain 
simplicity  of  manner.     Potter  mentioned  the    "plain- 

23  15  Nation,  p.  300. 

24  4  Am.  Bar  Association  Reports,  p.  176.  Rhodes,  a  scholarly  historian, 
spokeof  Taney  as  a  "good  student  of  the  law,"  who  was  an  "untiring  worker" 
who  "gained  solid  reputation  by  accurate  knowledge  of  the  law,  clearness  of 
thought,  and  absolute  purity  of  life.  His  written  opinions  are  characterized 
by  vigor  of  style,  exemplifying  the  hours  he  passed  with  the  masters  of  lit- 
erature."    (History,  II,  249-251.) 


ROGER  BROOKE  TANEY  539 

ness"  of  Taney's  life  and  recalled  with  pleasure  ''the 
singular  gentleness  and  dignity  with  which  he  presided" 
on  the  bench  and  "the  peculiar  consideration  he  showed 
to  young  men."  "He  was,  indeed,  a  man  of  iron  will, 
of  undaunted  courage,  of  absolute  purity,  of  respectable 
learning,  of  largest  powers,  kindest  charity,  and  loftiest 
patriotism." 

Some  years  later,  Nicolay  and  Hay's  "Life  of  Lincoln" 
appeared  and  these  authors  summed  up  their  opinions 
of  Taney's  character  thus.^^     He  was 

A  man  of  amiable  character,  of  blameless  life,  of  great  learning, 
of  stainless  integrity,  yet  such  is  the  undiscriminating  cruelty 
with  which  public  opinion  executes  its  decrees,  that  this  aged  and 
upright  judge  was  borne  to  his  grave  with  few  expressions  of 

regret Toilsome  and  irreproachable  as  his  life  had 

been,  so  far  as  purity  of  intentions  were  concerned,  it  was  marked 
by  one  of  those  mistakes  which  are  never  forgiven.  In  a  critical 
hour  of  history,  he  had  made  a  decision,  contrary  to  the  best  hopes 
and  aspirations  of  the  nation  at  large When  he  as- 
sumed public  office,  he  became  a  part  of  the  machinery  of  his  party. 
He  accepted  their  tenets  and  carried  them  unflinchingly  to  their 
logical  results,  so  that,  to  a  mind  so  upright  and  straightforward 
in  its  operations,  there  seemed  nothing  revolting  in  the  enuncia- 
tion of  the  dismal  and  inhuman  propositions  of  the  Dred  Scott 
decision.  His  whole  life  was,  therefore,  read  in  the  light  of  that 
one  act  and,  when  he  died,  the  nation,  he  had  so  faithfully  served 
according  to  his  lights,  looked  upon  his  death  as  the  removal  of  a 
barrier  to  human  progress.  The  general  feeling  found  expression 
in  the  grim  and  profane  witticism  of  Senator  Wade,  uttered  some 

26  Vol.  IX,  385.  Alexander  H.  Stephens  styled  Taney  as  an  "eminent 
jurist,"  who  "was  no  less  distinguished  for  his  public  than  his  private  virtues. 
In  all  the  qualities  which  characterize  a  good  citizen,  as  well  as  an  able  states- 
man, he  had  no  superior  in  the  country.  By  his  legal  and  judicial  attainments, 
he  added  new  lustre  to  that  Bench  to  which  Marshall,  whom  he  succeeded, 
had  already  given  so  much  distinction  and  renown."  (2  Const.  View  of  the 
War  Between  the  States,  p.  261.) 


540  ROGER  BROOKE  TANEY 

months  before,  when  it  seemed  likely  that  the  Chief  Justice  would 
survive  the  administration  of  Mr.  Lincoln:  ''No  man  ever  prayed 
as  I  did  that  Taney  might  outlive  President  Buchanan's  term  and, 
now,  I  am  afraid  I  have  overdone  it/'^^ 

It  ivS  remarkable  that  so  high  a  meed  of  praise  for 
Taney  was  extorted  from  two  such  hostile  critics  as  the 
writers  of  that  work. 

A  later  estimate  of  Taney  was  made  in  1892  by 
Francis  R.  Jones^^  that  the  Chief  Justice  was  a  ** great 
technical  lawyer,"  possessed  of  greater  legal  learning 
than  Marshall.  Jones  thought  that  the  Dred  Scott  Case 
was  a  blunder  and  that  Taney's  career  was  almost  as 
pathetic  as  that  of  Oedipus.  His  chronic  ill  health  and 
great  physical  weakness,  impaired  and  lessened  Taney's 
influence  in  the  Court,  yet  Jones  found  that:  (1)  the 
Chief  Justice  *' straightened,  systematized,  and  settled" 
the  rules  of  practice  in  the  Supreme  Court,  ''upon  a 
basis  from  which  all  subsequent  rules  have  arisen;" 
(2)  he  fixed  the  law  concerning  the  citizenship  of  a  cor- 
poration as  that  of  the  State  creating  it;  (3)  he  pre- 
served the  constitutional  rights  of  the  States  in  the 
Charles  River  case;  and  (4)  he  placed  the  admiralty 
jurisdiction  of  the  Federal  Government  on  a  board  basis, 
in  the  case  of  the  Genesee  Chief. 

After  another  decade,  John  A.  Schauck,  Chief  Judge 
of  the  Supreme  Court  of  Ohio,  reviewed  Taney's  career.^^ 
After  defending  Taney's  political  course,  Schauck  wrote 
that  the  national  authority  was  "  obviously  and  illogi- 

26  A  68  page  pamphlet,  attacking  Taney  as  "The  Unjust  Judge,"  is  said 
to  have  appeared  in  1865.    4  Green  Bag,  p.  6. 

27  4  Green  Bag,  p.  1,  with  portrait.  In  1895,  7  Green  Bag,  p.  351,  an  arti- 
cle appeared  upon  Taney  by  E.  S.  Taney,  which  is  agreeably  written,  but  con- 
tains nothing  of  importance. 

28  14  Green  Bag,  p.  559,  December,  1902.  An  article  upon  the  "Taney 
Bench"  by  Andrew  McKinley  appeared  in  16  Green  Bag,  p.  369. 


ROGER  BROOKE  TANEY  541 

cally  relaxed"  in  the  decisions  made  under  Taney. 
The  former  decisions  were  not  overruled,  but  neither 
were  they  "always  applied  to  new  cases,  to  which  they 
were  logically  applicable,  and  doctrines  inconsistent 
with  them  were  declared,"  without  the  Court  being 
conscious  of  departure  from  the  earlier  courses. 

That  Taney  **was  free  from  prejudice  against  what 
he  believed  to  be  legitimate  federal  power  is  shown  by 
cases,  in  which  he  aided  in  extending  it  beyond  the 
limits  which  some  of  his  associates  thought  proper." 
Most  of  his  departures  from  former  doctrines  related  to 
the  commercial  powers,  toward  the  limitation  of  which 
his  early  experience  as  counsel  for  the  State  in  Brown  v. 
Maryland  had  drawn  him.^^  On  the  bench,  he  held 
his  way,  with  marked  "dignity  and  propriety." 
y  Let  us  hear  the  conclusion  of  the  whole  matter  as 
it  appears  to  this  biographer.  Roger  Brooke  Taney 
was  a  clear-thinking,  able,  high-minded,  hot-tempered, 
narrow,  pertinacious,  brave,  prejudiced  man — a  devout 
Christian  and  a  faithful  member  of  the  Roman  Catholic 
Church — the  Church  of  his  mother.  From  his  father 
he  inherited  his  high  temper  and  his  position  as  a 
Federalist.  He  remained  a  Federalist  until  his  death, 
loving  the  Union  and  never  advancing  to  the  position 
of  a  Nationalist.  He  trusted  his  friends  and  was  not 
one  easily  to  forgive  an  adversary.  Brought  up  in  a 
community  of  slaveholding  planters,  he  might  emanci- 
pate his  own  slaves,  but  could  not  rid  himself  of  his 
predilection  toward  slavery.  An  ardent  politician  in 
his  early  years,  he  was  able,  for  the  most  part,  to  restrain 

29  Schauck  praised  the  Meriyman  opinion,  but  maintained  that  the  Dred 
Scott  one  was  wrong  and  unnecessary,  for  Scott  had  become  free  by  virtue 
of  his  residence  in  Illinois,  unless  the  Missouri  Court's  decision  should  be  up- 
held, and  when  it  was  upheld  the  Missouri  Compromise  question  disappeared 
from  the  case. 


542  ROGER  BROOKE  TANEY 

his  political  feelings  after  he  had  ascended  the  bench, 
save  in  one  notable  instance.  When  he  had  once  con- 
ceived an  idea,  it  was  very  hard  for  him  to  relinquish 
it,  and  some  of  his  most  important  public  acts  were 
determined  by  his  prior  relationships  to  men,  in  a  way 
more  complete  than  is  usually  the  case.  He  was  a  keen 
and  skilful  advocate,  never  hesitating  to  take  a  case 
because  there  was  small  chance  of  winning  it.  As  a 
judge,  his  great  success  lay  in  points  of  practice  and  in 
questions  of  admiralty  law.  He  was  deeply  versed  in 
the  principles  of  the  Common  Law,  without  being  a 
great  student  of  history  or  of  general  jurisprudence. 
His  decisions  are  well  characterized  by  a  judicious  writer 
in  Appleton's  Annual  Cyclopaedia  for  1864  as  cautious, 
sensible  and  sound.  His  constitutional  decisions  were 
those  of  a  man  who  loved  the  country  and  its  form  of 
government,  but  who  never  forgot  the  composite  and 
federal  character  of  the  United  States.^^ 

Forty  years  ago  my  father  took  his  young  son  for  a 
walk  in  Frederick  and,  stopping  in  front  of  a  small 
house  in  the  outskirts  of  the  town,  said:  ''There  lived 
Roger  B.  Taney,  Chief  Justice  of  the  United  States, 
while  he  practiced  law  at  the  Frederick  bar.  He  re- 
moved the  government  deposits  from  the  United  States 
Bank,  which  was  wrong;  he  made  the  Dred  Scott  Deci- 
sion, in  which  he  was  wrong  again;  but  he  was  a  great 
judge  and  a  good  man."  Two  score  years  have  passed 
and,  after  a  careful  study  of  the  life  of  the  jurist,  I 
would  not  change  the  judgment,  made  when  first  I 
heard  of  Taney — he  was  wrong  in  his  policy  in  those  two 
most  conspicuous  experiences  of  his  life — but  he  was 
a  great  judge  and  a  good  man 

•''°  One  of  the  first  pieces  of  work  done  by  me,  as  a  graduate  student  in  history, 
was  a  study  of  the  Dred  Scott  Case. 


INDEX 


Ableman  v.  Booth,  418,  424  to  436. 

Adams,  John,  31,37. 

Adams,  John  Quincy,  41,  83,  84,  86, 

129,144,145,156,157,451. 
Admiralty  Court,  jurisdiction  of,  283, 

292  to  296,  420,  423,  447,  448. 
Admiralty  decisions  in  Circuit  Court, 

472  to  487. 
Alabama,  207,  350. 
Alexander,  Thomas  S.,  461. 
Allegany  County,  57. 
Allison,  Richard  T.,  44. 
Anderson,  Roger  B.  T.,  44. 
Anderson,  Winfield  Scott,  44. 
Andrew,  John  A.,  398. 
Annapolis,  21,  22,  24,  29,  30,  32,  38, 

40,  43,  62,  84,  85,  102,  105,  107, 

139, 179, 184, 185, 186,  232,  536. 
Anne  Arundel  County,  52,  72,  78. 
Arkansas,  423. 
Ashley,  J.  M.,  405. 

Bacon,  Lord,  187. 

Bacon,  Ezekiel,  229. 

Balch,  T.  W.,  407. 

Baldwin,  Justice  Henry,  193,  207, 
284,  398. 

Baltimore,  13,  17,  22,  33,  37,  48,  50, 
71,  77,  79,  81,  82,  102,  158,  165, 
175,  '^n,  253,  265,  451,  456,  461, 
465,  522,  536;  Taney  returns  to, 
167;  federal  appointments  in,  238; 
in  1 86 1,  490;  County,  12. 

Baltimore,  schooner,  478. 

Baltimore,  Bar  of,  82. 

Baltimore  and  Ohio  Railroad,  140, 
465;  Maryland's  subscription  to, 
226. 

Banks,  33,  52,  59,  60,  182,  311;  (see 
Union  Bank  and  United  States 
Bank) ;  in  District  of  Columbia,  233. 


Bank  riots,  182  to  184. 

Bank  of  Augusta  v.  Earle,  207. 

Bankruptcy  clause,  275. 

Barbour,  Justice  P.  R., 193,  229, 398. 

Barnum  divorce  case,  88. 

Barry,  William  T.,  103, 126. 

Battle  Creek,  8. 

Beaume,  Chauvette  E.  L.,  330. 

Bennett  v.  Butterworth,  292. 

Benton,  Thomas  H.,  157,  159,  160, 

167,  172,  241,  251,  252,  331,  394  to 

398,  418. 
Berrien,  John  M.,  97, 100,  loi. 
Biddle,  George  W.,  407,  448. 
Biddle,  Nicholas,  107,  in,  112,  120, 

258. 
Bills  of  credit,  power  of  State  to 

emit,  194. 
Binney,  Horace,  501. 
Blaine,  James  G.,  408,  409. 
Blair,  Frank  P.,  103,  124,  130,  147, 

236,  242. 
Blah-,   Montgomery,   331,   332,  333, 

352,  534. 
Bland,  Theodorick,  451. 
Blow,  Taylor,  329,  330,  331,  389. 
Blucher,  Marshal,  83. 
Boarman,  Elizabeth,  8. 
Bonifant,  Washington,  492. 
Borden,  Luther  M.,  2 76. 
Boston  Bar  Proceedings  at  Taney's 

death,  320  to  324,  523. 
Booth,  Sherman  M,,  424. 
Brawner,  Catharine  Maria,  65. 
Brazil,  469,  475,  482. 
Breckenridge,  John  C,  389,  443. 
Brent,  D.,  86. 
Briscoe     v.     Bank     of     Kentucky, 

193,  195- 
British,  Invasion  of  1814,  10,  47. 
Brooke,  Robert,  8. 


543 


544 


INDEX 


Brooke,  Roger,  8. 

Brown,  George,  158. 

Brown,  Justice  Henry  B.,  418. 

Brown  v.  Maryland,  94,   193,   268, 

270,  280,  437. 
Browning,  Louisa,  89,  93. 
Buchanan,    James,    100,    103,    211, 

338,  339,  341  to  343,  357,  374,  393, 

398,  408. 
Buchanan,  John,  74. 
Buchanan,  Thomas,  64,  74. 
Budd  V.  Brooke's  Lessee,  461. 
Buenos  Ayres,  469. 
Burk,  Thomas,  65, 66. 
Burr,  Aaron,  conspiracy  of,  67,  68. 
Butler,  Benjamin  F.,  105,  124,  252. 

Cadwalader,  George,  491,  492,  493. 
Calhoun,   John   C,    155,    265,   344, 

396,  398,  413. 
California,  314,  437,  479,  480. 
Calvert  County,  7,  8,  11,  12,  19,  25, 

29, 30, 35, 37, 41,  57, 66,  67,  515. 
Camden  and  Amboy  R.  R.  v.  Dela- 
ware and  Raritan  Canal  Company, 

141. 
Campbell,  Alice  Taney,  44. 
Campbell,  Amy  Mainwaring,  44. 
Campbell,  Anne  Taney,  44. 
Campbell,  Elizabeth  Maynadier,  44. 
Campbell,  Justice  James  A.,  284,  328, 

332,  337,  340,  357,  372,  389,  404, 

413,446,448,489. 
Campbell,  James  Mason,  44,  452, 495. 
Campbell,  Mary  Monica,  44. 
Campbell,  Phebe  Key,  44. 
Campbell,  Roger  B.  T.,  44,  494. 
Canada,  212;  slaves  escape  to,  290. 
Carlisle,  Pennsylvania,  13,  14,  17,  18. 
Carmichael,  William,  24. 
Caroline  County,  79. 
Carpenter,  Matthew  H.,  535. 
Carroll,  Charles,  of  Carrollton,  34,  57, 

84,  88,  89,  93,  96. 
Carroll,  Thomas  William,  179,  257. 


Carson,  Hampton  L.,  406. 
Cass,  Lewis,  103, 130,  160,  335. 
Catoctin  Mountain,  44,  48,  63. 
Catron,  Justice  John,  229,  284,  327, 

332,  333,  337  to  340,  342,  357,  372, 

413, 446,  448,  489,  507. 
Cecil  County,  91. 
Chaffee,  Calvin  C,  330. 
Charitable  bequests,  313,  470;  uses, 

statute  of,  78. 
Charles  River  Bridge  Company  v. 

Warren    Bridge    Company,     141, 

194  to  203. 
Charless,  Joseph,  330. 
Charter  grant  to  be  narrowly  con- 
strued, 137,  141  to  143,  194  to  203, 

285. 
Chase,  Salmon  P.,  52,  509,  534. 
Chase,  Jeremiah  Townley,  21,  24,  25, 

65,  77. 
Chesapeake  Bay  trade,  476,  477,  483, 

485,  486. 
Chesapeake    and    Delaware    Canal, 

33^  285, 
Chesapeake  and  Ohio  Canal  Company 

v.  Baltimore  and  Ohio  Rail  Road 

Company,  140,  141. 
Chihuahua,  298,  299. 
Chile,  trade  with,  466. 
Choate,  Rufus,  267. 
Cigars,  gift  of,  172. 
Cincinnati,  181,  308,  326. 
Circuit  Court,  pa3anent  of  jurymen 

and  witnesses  in,  248,  250;  Taney's 

decisions  in,  451  to  487,  512  to  514; 

relation  to  Supreme  Court,  454. 
Citizens,  who  are,  345,  400,  403,  417; 

of  United  States,  362,  363,  400, 

404;  of  State,  345,  346,  347,  400; 

negroes,  345  to  352,  358,  362,  363, 

372,  381,  399,  403,  404,  405,  410, 

412;  discharging  federal  duty,  357, 

364;  duty  to  neutral  nations,  307; 

right  of  transit  through  country, 

282,  357. 


INDEX 


545 


Clay,  Henry,  6i,  107,  153,  154,  159, 
182,  187,  218,  243,  254,  256,  262, 
265,398. 

Clover,  Rev.  Lewis  Peter,  D.D., 
48,  528. 

Coale,  James  M.,  521. 

Coke,  Lord,  421. 

Cole,  John,  468. 

Collisions  on  the  water,  293, 423, 484, 
48s,  486. 

Commerce,  congressional  power  over, 
94,  192,  218,  224,  225,  267  to  273, 
279  to  282,  305,  306,  419,  423,  437; 
in  war  time,  214,  469,  478,  512 
to  515. 

Congressional  power  to  charter  bank, 
108  to  112, 129. 

Connecticut,  negroes  in,  349. 

Conquest  of  territory,  288,  289. 

Conscription  law,  510,  511. 

Constitution  of  U.  S.  over  states,  435, 
440;  proper  method  of  exposition, 
213,  449. 

Constitutionality  of  statutes,  454. 

Consul,  jurisdiction  over,  454. 

Contempt  of  court,  472. 

Contract,  impairment  of  obligation 
of,  223,  309,  311,  365;  maritime, 
476,  477,  479;  validity  of,  274,  463 
to  466. 

Converse  v.  Greeley,  423. 

Cook  V.  Curtis,  273. 

Copyright,  468. 

Corporations,  powers  of,  285,  309; 
rights  outside  of  state  where  in- 
corporated, 207  to  210. 

Corwin,  Edward  S.,  410. 

Crawford,  William,  158,  159. 

Cumberland  Road,  224,  225. 

Curtis,  Justice  B.  R.,  284,  320  to 
322,  324,  327,  332,  340,  341,  342, 
347,  361  to  372,  382,  388,  389,  398, 
404,  407,  408,  416,  420,  448,  501, 
527,528. 

Curtis,  B.  R.,  Jr.,  371. 


Curtis,    George   Ticknor,   333,   335, 

387,  389. 
Gushing,  Caleb,  342,  527. 
Gushing  v.  Ship,  John  Frazer,  423. 

Daniel,  Justice  Peter  V.,  46,  229,  284, 
327,  332,  340,  357,  372,  383,  400, 
413,437,448,489. 

Davidson,  Rev.  Robert,  D.D.,  14,  15. 

Dartmouth  College  Case,  194. 

Davis,  Henry  Winter,  470. 

Davis,  John,  267. 

Debt,  national,  175. 

Debtors  insolvent,  imprisonment 
of,  61. 

Delaware,  234,  250,  261, 451. 

Denison,  William,  438. 

Deposits,  removal  of,  118  to  121, 
123  to  130,  132,  144,  146,  150,  151, 
153  to  158, 171, 181,  248,  262, 378. 

Dickinson  College,  13, 14, 15, 104. 

Dinsman  v.  Wilkes,  296. 

District  of  Columbia,  laws  in,  211; 
negroes  in,  352. 

Divorce,  88,  424. 

Donelson,  Andrew  J.,  233. 

Doniphan,  Col.  Alexander  W.,  299. 

Dorr  Rebellion,  276. 

Dorsey,  W.,  63. 

Double  Pipe  Greek,  43, 44. 

Douglas,  Stephen  A.,  342,  374,  391, 

443. 
Dred  Scott  Case,  326  to  418,  443, 
445;  Taney's  opinion,  343  to  355, 
Z72,  378,  379,  383  to  387,  404, 
414  to  418;  Wayne's  opinion,  355, 
356,  372,  404;  Nelson's  opinion, 
Z3(>,  337,  356,  357,  372;  Grier's 
opinion,  357,  372,  404;  Daniel's 
opinion,  357,  372,  400,  413;  Gamp- 
bell's  opinion,  357,  372,  404,  413; 
Catron's  opinion,  357,  372,  413; 
McLean's  opinion,  358  to  361, 
372,  414,  416;  Curtis'  opinion, 
361   to  371,   372,  404,  407,  408, 


546 


INDEX 


416,  417;  attacked,  372,  373,  39o 
to  418,  534,  535,  541;  defended, 
374  to  382,  389;  friction  between 
Taney  and  Curtis,  383  to  388. 

Duane,  William  J.,  124,  125,  128, 
129,132,150,155,254,255. 

Duvall,  Gabriel,  26, 179. 

Edmunds,  George  F.,  535. 

Election  in  1799,  30,  31;  in  1800,  36, 

37;  in  1803,  56,  57;  in  1808,  57;  in 

1814,  58;  in  1824,  83;  in  1828,  84; 

in  1829,  85;  in  1832,  107,  118,  122; 

in  1834,  174,  176,  253;  in  1835, 177; 

in  1836,  236;  in  1837,  247,  248,  250; 

in  1839,  253,  255;  in  1841,  260;  in 

1842,  261;  in  1843,  263,  264. 
Elkton,  171,  175,  176. 
Ellicott,  Thomas,  83,  98,  106,  115, 

147, 148, 184. 
Emancipation,    Taney's    opinion    as 

to,  376, 378. 
Emerson,  John,  328,  357,  364. 
Emerson,  Mrs.  John  (Irene),  329, 330. 
English,  David,  13. 
English  Law,  Taney's  opinion  of,  422. 
Equity,  292,  314,  469  to  472. 
Etting,  Frank  M.,  44. 
Etting,  Solomon,  83, 92, 93, 105. 
Evidence,  rules  of,  298;  of  negroes, 

455,  486. 
Evitt,  Woodward,  56. 

Ewing,E.W.R.,375. 
Ewing,  Thomas,  529,  531. 
Executor's  bond,  467. 
Expunging  resolutions,  157. 
Extradition,  212,  307,  459  to  442. 

False  imprisonment,  463. 

Farrar,  Thomas,  404. 

Fauquier  White  Sulphur  Springs,  375. 

Federal  courts,  supremacy  of,  428  to 

436. 
Federalist  party,  30,  36,  56,  57,  58, 

83,  84,  85,  103,  104,  154,  170,  190. 
Fessenden,  William  P.,  408. 


Field,  Roswell,  330,  331. 

Florida,  boundary,  313;  claims  arising 

from   war   in,   302;   Spanish  land 

grants  in,  204,312. 
Fontain  v.  Ravenel,  313. 
Foreign    nations,    intercourse    with, 

307,  308. 
Forsyth,  John,  232. 
Fort  McHenry,  491,  492,  493. 
Fort  Snelling,  Minnesota,  328,  338, 

364. 
Fox  hunting,  19,  20. 
France,  Danger  of  war  with,  160,  161, 

162,  184. 
Fraudulent  sale,  462. 
Frederick  City,  10,  38  to  79,  85,  169, 

170,  521.    County,  452. 
Frederick  County  Bank,  52. 
Frederick  Academy,  52,  178. 
Fremont,  Gen.  John  C,  314,  409. 
French  protested  note,  151,  152,  176, 

274. 
French  treaty  claims,  214. 
Frick,  William,  238. 
Fugitive  slave,  law,  219,  425,  426, 

Gaither,  George  R.,  158, 159. 

Gambling,  470,  471. 

Garfield,  James  A.,  535. 

Genesee  Chief  v.  Fitzhugh,  292  to  296. 

Georgia,  207,  313,  397. 

Georgetown,  D.  C,  13,  40,  loi, 

Geyer,  Henry  S.,  42,  331. 

Giles,  William  B.,  523. 

Gilpin,  Henry  D.,  168. 

Glenn,  Elias,  184,  186. 

Glenn,  John,  141,  184. 

Goodwin,  Lyde,  240. 

Grand  Jury,  charge  to,  452. 

Greeley,  Horace,  405,  533. 

Grier,  Justice  Robert  G.,  284,  3", 

327,  332,  337  to  340,  342,  357,  360, 

372,404,413,448,507. 
Gruber,  Jacob,  72  to  76. 
Grundy,  Felix,  252. 


INDEX 


547 


Habeas  Corpus,  212,  426,  427,  434, 

490  to  504. 
Hager,  Jonathan,  68. 
Hagerstown,  58,  63,  65,  6S,  69. 
Hale,  John  P.,  267,  394. 
Hale,  Nathan,  399. 
Hancock,  Maryland,  50. 
Harford  County,  78. 
Harker,  Samuel,  240. 
Harper,  Robert  Goodloe,  6$,  71,  77, 

78,  81,  83,  84,  87,  397. 
Harper's  Ferry,  140, 169. 
Harvard  College,  198,  200. 
Heath,  Upton  S.,  184. 
Henry,  Joseph,  310. 
Hobbs  V.  Fogg,  381. 
Holmes  v.  Jennison,  211. 
House  of  Delegates,  29,  56. 
Hughes,  George  W.,  444. 
Hughes,  Samuel,  62. 
Howard,  McHenry,  494,  503. 
Howard,  John  Eager,  34,  52,  503. 
Huston,  Charles,  16. 

Illinois,  328,  331,  354,  356,  360,  374, 

397,  399- 
Immigrants,    484. 
Income  tax  on  federal  judges'  salary, 

S08. 
Indians,  137, 138,  222,  227,  345,  363. 
IngersoU,  Charles  J.,  107. 
Insolvent  laws  of  States,  273,  274. 
Insurance,  marine,  95,  463,  464. 

Jackson,  Andrew,  8s,  84,  100  to  103, 
105  to  107,  109,  114,  116  to  132, 
138,  145,  146,  149,  15s,  157,  160, 
162,  165  to  168,  171  to  177,  179, 
185,  187,  233  to  266,  498;  farewell 
address,  236,  240,  241;  bust  of,  251. 

Jesuits,  8, 10,  85. 

Johnson,  John,  64. 

Johnson,  Reverdy,  77,  78,  80,  81,  82, 
93,  140,  141,  14s,  182  to  185,  331, 
337,  348,  374,  393,  398,  446,  525, 
526,  530. 


Johnson,  Thomas,  41. 

Jones,  Francis  R.,  540. 

Jones,  Walter,  68,  97, 140. 

Jones,  William,  100. 

Jordan's  Springs,  265. 

Jurisdiction  of  courts,  204,  215,  313, 
334,  344,  354,  355,  357,  361,  3^3, 
374, 391,  395,  404.  411,  421,  454- 

Kansas,  392,  400. 

Kansas  Nebraska  Bill,  326,  331,  341. 

Kearney,  Gen.  Phil.,  299. 

Keim,  William  H.,  490,  492. 

Kendall,  Amos,  103,  145,  148,  177, 

206,  226,  230,  249,  256,  263. 
Kendall  v.  Stokes,  205  to  207,  225. 
Kennedy,  John  P.,  178. 
Kennett  v.  Chambers,  306. 
Kent,  Gov.  Joseph,  86. 
Kent,  Chancellor  James,  195. 
Kentucky,  389;  v.  Denison,  437  to 

442;    minstrels,     289,     290,    354; 

negroes  in,  349,  396. 
Key,  Francis  Scott,  40,  43,  47,  51,  55, 

62,  64,  69,  70,  90,  95,  100,  loi,  102, 

149, 184, 185,  230,  263. 
Key,  John  Ross,  40, 43, 47. 
Key,  Philip  Barton,  63,  64,  66. 

Lago,  Willis,  438,  441. 

Lake  Ontario,  293. 

Lambert  v.  Ghiselin,  287. 

Lamon,  Ward,  515. 

Lamed,  William  A.,  400. 

Latrobe,  John  H.  B.,  81, 83,  85,  87,  88, 

99,  106,  140. 
Laura,  barque,  419. 
Law,  John  K.,  239,  240. 
Law  reform,  318,  319. 
Lee,  Robert  E.,  529. 
LeGrand  v.  Darnall,  96,  350. 
Lewis,  William  B.,  124,  130. 
License  cases,  267  to  273,  412. 
Limitations,  statute  of,  467. 
Lincoln,  Abraham,  342,  391,  438,  443, 

445,  490,  500,  501;  Taney  refuses 


548 


INDEX 


to  call  on,  507;  Life  by  Nicolay  and 

Hay,  539. 
Lingan,  General  James,  55. 
Livingston,  Edward,   loi,   102,  103, 

124,  256. 
Loudon  County,  Virginia,  51. 
Louisiana,  283,  481. 
Louisiana  Purchase,  328,  337,  354, 

357,  359,  368,  370,  371,  397,  413. 
Lumber,  Rafts  of,  486. 
Luther  v  Borden,  276  to  279. 
Lynn,  David,  57. 
Lyon,  John  16, 17. 

McCormick,  James,  15. 
McCulloh  V.  Maryland,  108,  iii. 
McCullough,  James  W.,  92,  93. 
McDonough,  A.  R.,  538. 
McElroy,  Rev.  John,  46,  50. 
McKim,  Isaac,  158, 159. 
McKinley,  Justice  John,  229,  284. 
McLane,  Louis,  124,  125,  130,  131, 

160, 161, 170, 177,  239. 
McLean,  Justice  John,  196,  211,  218, 

284,  332,  337,  339,  341,  358,  359, 

360,372,414,419,448,505. 
McMahon,  J.  V.  L.,  185,  461,  462. 
Madison,  President  James,  68,  85. 
Magoffin,  Beriah,  438. 
Magruder,  A.  C,  140. 
Magruder,  John,  51. 
Magruder,  R.  B.,  141. 
Mail,  224. 
Mail  coaches,  225. 
Maine,  392;  negroes  in,  350. 
Malays,  455. 

Mandamus,  205,  225,  419,  439. 
Marechal,  Abp.  Ambrose,  85,  86. 
Mariners'  wages,  98,  420,  477,  478. 
Maritime  contract,  466. 
Marriage  of  negroes,  365,  381. 
Marshall,  John,  179,  181,  187,  191, 

193,  263. 
Marshall,  Richard  H.,  521. 
Martin  v.  Waddell,  222. 


Martin,  Judge  Robert  N.,  527. 

Martin,  Luther,  25,  63  to  66,  68  to  72. 

Martineau,  Miss  Harriet,  189. 

Maryland  described,  286;  general 
court,  21,  24,  25;  negroes  in,  348, 
349,  362,  455;  does  not  secede,  446, 
488;  court  of  appeals  judges  greet 
Taney,  514;  appropriates  for 
Taney's  statue,  535,  536. 

Mason,  John  Thompson,  62,  64,  69. 

Mason,  John  Y.,  265. 

Massachusetts,  382,  389;  boundary, 
204,  216,  217,  228;  liquor  laws, 
268;  negroes  in,  348,  362;  passen- 
gers laws,  280. 

Mayor  of  New  York  v.  Miln,  192. 

Maxey,  Virgil,  52. 

Menard  v.  Aspasia,  360. 

Meredith,  Jonathan,  88,  94,  95,  98, 
141,178,529. 

Merrick,  Judge,  526. 

Merryman,  John,  490, 491. 

Metallic  currency,  156,  159,  163,  164, 
172,  245,  256. 

Methodist  Church,  75. 

Mexico,  291,  314,  363;  war  with,  287 
to  289,  298  to  302. 

Michigan,  168,  364. 

Middletown,  Frederick  County ,  57, 74. 

Military  officer,  domicile  of,  357,  364, 

399. 

Militia,  350,  351. 

Miller,  Justice  Samuel  F.,  535. 

Minnesota,  328, 373, 398, 399, 419. 

Mississippi  River,  296. 

Mississippi  Territory,  397. 

Missouri,  328  to  331,  338,  346,  350, 
352, 356, 360, 363, 364, 365, 373. 

Missouri  compromise,  61,  154,  196, 
326,  328,  334,  335,  32,7,  338,  339, 
341,  354,  355,  357,  363,  3^6,  367, 
371,  372,  395,  398,  399,  404,  405, 
410,412,413,414,416. 

Mitchell  v.  Harmony,  298  to  301. 

Monocacy  River,  48,  67. 


INDEX 


549 


Monterey,  California,  302. 
Montgomery    County,    55,    66,    67, 

71,  78, 100,  236. 
Morse,  S.  F.  B.,  309  to  311. 
Morsell,  James  S.,  515. 
Murder,  455,  456. 

Naturalization,  346,  350,  351,  362, 

401. 
Naval  officer,  salary  of,  468. 
Navigable  streams,  292,  304. 
Navy  Department,  137. 
Negligence,  460,  461,  471,  480,  506. 
Negotiable  instruments,  287,  423. 
Negroes,  46,  55,  56,  60,  72,  118,  334, 

339,  345  to  352,  376,  377,  379,  381, 

399,400,403,455,511- 
Nelson,  Roger,  62. 
Nelson,  Justice  Samuel,  284,  327,  332, 

336,337,339,356,357,372. 
Neutral   in   enemy    country,    rights 

of,  291. 
Neutrality  laws,  214,  306. 
New  Hampshire,  liquor  laws  of,  270, 

273;  negroes  in,  350,  362. 
New  Jersey,  rights  to  land  in,  222. 
New  Jersey  Legislature,  power  of,  142; 

endorses  Taney,  154. 
New  York  City,  265. 
New  York  State,  392;  passenger  laws, 

280,  negroes  in,  362. 
New  York  Tribune,  335,  341,  343, 

372,373- 
Nisbet,  Rev.  Charles,  D.D.,  14,  15, 

17,  18. 
Norfolk  Drawbridge  Company,  137. 
North  Carolina,  362,  381, 397. 
North  West  Ordinance  interpreted, 

290,  360,  366,  367, 397,  416. 
Nott,  Eliphalet,  375,  376. 
Nullification,  105. 

O'Conor,  Charles,  531. 
Officer,  compensation  for  extra  ser- 
vices, 424,  457. 


Ohio,  290,  306,  312,  392,  438. 
Old  Point  Comfort,  50, 126, 319. 
Oliver,  Robert,  82,  314. 
Oliverv.  Gray,  95. 
Opinions,  construction  of,  273. 
O'Reilly  V.  Morse,  309. 
Owings  Mills,  17, 32. 

Palmer,  Joseph  M.,  34. 

Paper    currency    not    legal    tender, 

163,  509- 
Paper  money,  60,  237,  238,  243,  244, 

246,  248  to  250,  257, 262  to  264. 
Passenger  cases,  193,  279  to  283. 
Patapsco  River,  140,  513. 
Patent  law,  221,  222,  291,  309,  419, 

469- 
Patent  office,  135. 
Patterson,  James  W.,  158. 
Patuxent  River,  7,  8,  10,  13. 
Pease  v.  Peck,  360,  366. 
Pendleton,  Alice  Key,  519,  520. 
Pennsylvania,  304,  313,  382,  421,  470. 
Perine,  David  M.,  504,  505,  517,  SiQ- 
Perine,  E.  Glenn.,  519. 
Perrine  v.  Chesapeake  and  Delaware 

Canal  Company,  285. 
Personal  liberty  laws,  425. 
Peters,  Richard,  206,  207,  211,  212, 

230,  316. 
Pierce,  Franklin,  378,  503. 
Pigman,  Beene  S.,  74. 
Pike,  James,  335,  343,  372,  ZJZ. 
Pilotage  laws,  271. 
Pinkney,  William,  25,  53,  68,  71,  72, 

77,  87,  523- 
Point  of  Rocks,  67. 
Police  power,  192,  272. 
Political  questions,  279,  303,  368,  387^ 

391,395,398,405,407,418. 
Polk,  James  K.,  155,  163,  228,  264. 
Potomac  River,  140. 
Potter,  Clarkson  N.  ,  448,  535,  538. 
Potts,  Richard,  41. 
Practice,    opinions    on,    written    by 

Taney,  323. 


550 


INDEX 


Practice  and  procedure  of  the  United 
States  Courts,  205,  446. 

President,  power  to  recognize  State 
Government,  278. 

Presidential  Elector,  57. 

Price,  William,  54,  522. 

Prigg,  V.  Pennsylvania,  219,  359,  406. 

Prince  Fredericktown,  30. 

Prince  George's  County,  72. 

Princess  of  Orange's  jewels,  134. 

Princeton  College,  13. 

Prize  cases,  507. 

Prize  court,  301,  302. 

Property  rights  under  Fifth  Amend- 
ment, 354, 368, 369, 396,  413  to  415, 
418. 

Protestant  Episcopal  Church,  44,  470. 

Public  lands  to  be  paid  for  in  specie, 
237,  241. 

Quarantine  regulations,  272. 

Randolph,  John,  of  Roanoke,  397. 
Rape,  65,  66. 
Raymond,  Daniel,  78. 
Republican  form  of  Government  of 

State,  277  to  279. 
Rhode  Island,  liquor  laws  of,  269; 

negroes  in,  350;  rebellion  in, of  1842, 

276  to  279;  V.  Massachusetts,  204, 

216,  217,  228. 
Richmond,  Virginia,   263,  384,   502, 

505- 
Ridgely,  Andrew  Sterrett,  526. 
Rinehart,  William  H.,  536. 
Ringgold  V.  Ringgold,  91. 
Ringgold,  Samuel,  66. 
Riot,  456. 

Ripraps,  126,  128  to  130. 
Rochester,  Nathaniel,  58. 
Rock  Island,  328. 
Rockville,  66. 
Roman  Catholics,  7,  44  to  47,  60,  82, 

443,444- 
Ross,  William,  54. 
Rotation  in  office,  Taney's  view,  379. 


Sailor,  discharge  of,  297,  298. 

Sale,  contract  of,  465. 

Sanford,  or  Sandford,  John  F.,  330. 

Santa  Fe,  298. 

Saxe  Weimar,  Duke  of,  82. 

Schley,  Frederick  A.,  56. 

Schley,  William,  49,  53,  77,  82,  524. 

Schauck,  John  A.,  540. 

Schools  in  Calvert  County,  11, 12, 13. 

Schouler,  James,  522. 

Scott,  Dred,  328,  365, 389. 

Scott,  Eliza,  328. 

Scott,  Harriet,  328, 365,  388. 

Scott,  Lizzie,  329. 

Scott  V.  Sanford,  326  to  418. 

Seaman's  wages,  see  Mariners'  wages. 

Searle,  G.  W.,  532. 

Senate  of  Maryland,  59  to  62. 

Seward,  William  H.,  317, 392,  393. 

Shaaff,  Arthur,  38,  48,  55,  62  to  66, 
69  to  71. 

Shriver,  Abraham,  74. 

Slander,  65,  79. 

Slave  trade,  African,  94,  214,  282, 
349,  370,  397,  416,  460,  483;  inter- 
state, 218. 

Slavery,  324,  325,  336,  340,  352,  357 
to  359,  379,  380,  390,  396;  in 
territories,  326,  328,  329,  331, 
333  to  335,  341,  343,  3^7  to  369, 
371,  391,  393,  394,  396,  397,402, 
405,  408,  443;  only  by  municipal 
law,  363,  364,  369,  370,  400,  406, 
414. 

Slaves,  55,  56,  61,  72,  78,  79, 136, 138, 
191,  274,  281,  292,  319,  348;  free- 
dom of,  223,  290, 382;  Taney's  view 
of  duty  of  master,  377. 

Smith,  Samuel,  107, 112,125,  239,398. 

Smith,  T.  C,  417,447. 

South  Carolina,  313. 

Sovereignty,  289,  312,  353. 

Spirits,  importation  of,  267  to  273. 

Springfield  Republican,  390. 

Squatter  Sovereignty,  326,  333,  335, 
341,374,443- 


INDEX 


551 


Stagecoach,  460. 

Stare  Decisis  Rule,  295,  356,  359,  360. 

Stansbery,  Henry,  530. 

State  V.  Manuel,  362,  381,  399. 

State  bonds,  423. 

State  court's  decision,  312,  354,  356, 
360  361,  365;  not  upheld,  274;  as 
to  State  Constitution,  506. 

State  laws,  constitutionality  of,  215. 

States  of  Union,  relations  to  each 
other,  209;  relations  to  foreign 
countries,  212,  relation  to  nation, 
274. 

State  or  pet  banks  for  government 
funds,  119,  122,  123,  127  to  129, 
139,  146,  149,  152,  156,  157,  163 
164, 174, 179  to  181,  245. 

Steiner,  Col.  Stephen,  42. 

Steamboat  inspections,  483. 

Stephens,  Alexander  H.,  334,  335, 
373,  374,  502,  539. 

Stephens,  Linton,  334,  335,  502. 

Stevenson,  "William,  44. 

Storey,  Moorfield,  537. 

Story,  Justice  Joseph,  92,  133,  153, 
181,  189,  193,  195,  196,  210  to  212, 
220,  223,  224,  229  to  231,  237,  284. 

Strader  v.  Graham,  289,  290, 354. 

Stryker,  Augustus  P.,  44 

Str>'ker,  Heber  Halsey,  44. 

Stryker,  Mason  Campbell,  44. 

Sub  Treasury,  243. 

Suffrage  and  citizenship,  373,  382. 

Sumner,  Charles,  189,  393,  394,  534. 

Supreme  Court,  power  of,  to  interpret 
Constitution,  279,  368,  431,  432  to 
434;  high  regard  for,  342 ;  ojfficers  of, 
relation  to  Taney,  515,  516;  jus- 
tices of,  relation  to  Taney,  516, 
519;  position  of,  518. 

Surplus  revenue  deposited  with 
States,  234  to  237,  241,  245,  252. 

Susquehanna  River,  286,  486. 

Tampico,  occupation  of,  287  to  289. 
Taney,  Alice  Carroll,  44,  50,  252,  319. 


Taney,  Ann  P.  C.  Key  (Mrs.  Roger 
B.),  43  to  45,  47  to  52,  230,  255, 
263,  319,  527. 

Taney,  Anne  Arnold  Key,  44. 

Taney,  Augusus  Brooke,  44. 

Taney,  Ellen  Mary,  44,  437. 

Taney,  Elizabeth  Maynadier,  44. 

Taney,  Ethelbert,  45,  50. 

Taney,  Maria  Key,  44,  85. 

Taney,  Michael,  7  to  10,  12,  13,  15, 
20,  27,37,38,51,  52,56,  249. 

Taney,  Michael's  children,  11. 

Taney,  Monica,  8  to  10,  45,  51. 

Taney,  Octavius,  11, 12,  56. 

Taney,  Raphael,  8. 

Taney,  Roger  B.,  born,  8;  early 
education,  11,  12,  13,  515;  college 
education,  13  to  19;  fox  hunting, 
19,  20;  law  student,  21  to  25;  lawyer 
at  Annapolis,  25  to  28,  38;  lawyer 
in  Calvert  County,  29,  35;  member 
of  House  of  Delegates,  30  to  36; 
timidity,  19,  25  to  28;  in  social  life, 
22,  34,  48,  89;  love  of  country,  35, 
48;  lawyer  in  Frederick,  39  to  80; 
marriage,  43;  love  of  wife,  48  to 
51;  children,  44;  executor  of 
father's  estate,  9;  home  in  Frederick, 
55,  80;  frees  slaves,  55,  56,  376; 
candidate  for  House  of  Delegates 
1803,  56;  candidate  for  Presi- 
dential Elector  1808,  57;  candi- 
date for  Congress  1814,  58;  Elec- 
tor for  Senate  of  Maryland,  59; 
State  Senate,  59;  lawyer  in  Balti- 
more, 81;  residence  in  Baltimore, 
81;  165;  becomes  Jacksonian,  8$ 
to  85;  recommends  to  office,  84; 
first  appears  in  Court  of  Appeals, 
63;  first  appears  in  United  States 
Supreme  Court,  91;  attorney  gen- 
eral of  Maryland,  S6,  93;  attorney 
general  of  United  States,  98,  132 
to  139,  165,  171;  acting  Secretary 
of  War,  103;  receives  LL.D.  from 
Dickinson,  104;  Secretary  of  Treas- 


552 


INDEX 


ury,  128,  144  to  165,  170,  318; 
controversy  with  United  States 
Bank,  104  to  165;  resumes  law 
practice,  166;  on  United  States 
Supreme  Bench,  145,  179;  Chief 
Justice,  181,  232,  237;  principles 
of  deciding  cases,  190,  192;  spends 
summer  in  country,  243,  246;  differs 
from  other  Justices,  315;  ap- 
pearance in  Court,  315;  harmonizes 
difference  between  reporter  and 
clerk,  316;  administers  oath  of 
ofl&ce  to  President,  316,  490; 
declines  dedication  of  political 
speech,  317;  rule  as  to  refraining 
from  politics  on  bench,  444; 
characteristics  as  judge,  320  to  324, 
332;  legal  ability,  322;  his  great 
decisions,  447;  opinions  rendered 
by,  448;  demeanor  in  Circuit 
Court,  451,  462;  circuit  court  deci- 
sions, 452;  position  in  1861,  446, 
489  to  503;  loses  property,  504; 
death,  520;  burial,  10,  521;  health, 
20,  52,  173,  175,  176,  253,  260,  261, 
263,  320  to  322,  333,  375,  384,  505, 
506,  518,  527;  defective  vision,  34, 
35;  character,  42,  43,  53,  80,  104, 
190,  343,  409;  reading,  43,  520,  522, 
523;  religion  of,  44  to  47,  50,316, 
517;  love  of  flowers,  48;  friendship 
for  young  lawyers,  54,  87,  535; 
appearance,  87,  98,  188;  relations 
with  children,  317;  birthday  gift, 
317;  literary  style,  320,  324;  esti- 
mates of,  442,  446,  448  to  450, 
489,  537  to  542;  eulogies  on,  521 
to  533;  family  of,  left  in  need,  534; 
bust  of,  534;  statue  of,  535,  536; 
Life  by  Samuel  Tyler,  537. 

Taney,  Sophia  Brooke,  44,  85. 

Taney  family,  175,  177,  520. 

Taney  v.  Kemp,  71. 

Taney  town,  Maryland,  8,  373. 

Taneyville,  Missouri,  373. 


Tariff  laws  interpreted,  457, 458. 
Taxation,  exemption  from,  claim  291; 

power  of  Congress,  282,  311. 
Taylor,  Francis,  44. 
Taylor,  Roger  Taney,  44. 
Taylor,  Zachary,  316. 
Teesdale,  John,  326. 
Telegraph,  magnetic,  309,  310. 
Territories,  power  of  Congress  over, 

353,  354,  358,  364  to  366,  368,  370, 

396  to  398, 423,  414, 416. 
Territorial  Courts,  274. 
Texas,  292,  306,  308. 
The  Thomas  Jefferson,  295. 
Thomas,  Francis,  169,  170. 
Thomas,  John  Hanson,  41,  56,  58,  67. 
Thomas,  Samuel,  172, 173. 
Thompson,  Justice  Smith,  193,  230, 

284. 
Tidewater,  292  to  295. 
Tiernan  v.  Jackson,  98. 
Tolls,  285,  286,  437. 
Tome,  Jacob,  486. 
Treasury  Department,  136. 
Treaties,  135. 
Treaty  making  power,  288,  312,  313, 

419. 
Trumbull,  Lyman,  534. 
Tyler,  Grafton,  511,  520. 
Tyler,  John,  58,  229,  257  to  262,  265, 

318. 
Tyler,  Samuel,  46, 49, 318,  520,  537. 

Union  Bank  of  Maryland,  8$,  89,  91, 
94,  96,  98,  105,  106,  147,  149,  153, 
154, 156, 159, 184, 243. 

Union  sentiments  of  Taney,  378,  428 
to  436,  448,  449,  517,  532. 

United  States  v.  Booth,  315. 

United  States  v.  Gooding,  95. 

United  States  v.  Morris,  214. 

United  States  v.  Reid,  298. 

United  States  Bank,  98,  104  to  132, 
142,  144  to  156,  163,  168,  170  to 
172,  174  to  177,  180,  181,  236,  237, 


INDEX 


553 


241,   243,   247,   248,   25s,   260, 
261, 263. 

Usury,  464,  470. 

Vacancies,  President's  power  to  fill, 

139- 
Van  Buren,  Martin,  104,  105,  116, 

124,  129,  132,  150,  162,  167  to  169, 

171,176,177,184,185,233,239,242, 

243,246,436,437. 
Vermont,  212,  392. 
Vessel,  bonds,  459;  lien  on,  419,  420, 

475;    repairs,    475    to    477;    suits 

from  building,  472  to  474. 
Veto  power  of  President,  109  to  117 
Vincennes  University  V.  Indiana,  309. 
Virginia,    304,   382,   396,    451,   465. 

504,  513. 

Wade,  Benjamin  F.,  539. 

Wallis,  Severn  Teackle,  81,  516,  517, 

524,  536. 
War  Department,  103, 136. 
War  power  of  President,  288,  301, 

49oto502,  511,512,  518,  537. 
War,    seizure    of    private    property 

in,  300,  513. 
Warfield,  Henry  Ridgely,  84. 
Washington  City,  48,  85,  96,  100, 103, 

165,491,521. 
Washington  County,  62,  63,  66,  68, 

70,  73,  78,  226. 
Washington,  George,  death  of,  ss,  34. 
Wayne,  James  M.,  Justice,  42,  55, 

165,  193,  211,  284,  327,  332,  336, 

337,339,355,372,383,406,419,446, 

448,  489,  507,  516,  531. 


Webster,  Daniel,  92, 97, 140, 154, 171, 

172,  182,  194,  195,  218,  257,  267, 

316. 
West  Indies,  trade  with,  458,  459, 

475,  480,  483. 
West  River,  Anne  Arundel  County, 

287. 
Wheeling  Bridge  Case,  304  to  306, 

315. 
White,  John,  238. 
Whitney,  Reuben  M.,  126. 
Wickliffe,  Charles  A.,  265. 
Wilkens,  William,  265. 
Wilkes,  Commodore  Charles.  297, 298. 
Wilkinson,  Gen.  James,  court  martial 

of,  67. 
Williams,  George  Hawkins,  491. 
Williams,  Nathaniel,  186. 
Williams  v.  Ash,  382,  399. 
Wilmer,  L.  A.,  240. 
Wilson,  Henry,  405. 
Winchester,  Virginia,  263. 
Winder,  William  H.,  71,  72,  77,  78, 81. 
Wines,  importation  of,  267  to  273. 
Wirt,  William,  79,  81,  82,  87,  92  to  95, 

97,98,141,523. 
Wisconsin,  364,  365,  424,  425  to  436. 
Woodbury,  Levi,  126,  175,  177,  179, 

246,  248,  250,  284. 
Woolsey,  Theodore  D.,  400. 
Writ  of  error,  284,  315,  353,  361,  426, 

434. 
Wyatt,  J.  B.Noel,  317. 

Yohe,  Samuel,  492. 


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